ARTICLE 1 Short Title; Definitions; Application
Short title. a. This chapter shall be known as the "workers'
compensation law."
b. Reference in this chapter or in any other law to the workmen's
compensation law shall be deemed to mean and refer to the workers'
compensation law. The terms "workman" or "workmen" appearing in this
chapter shall be deemed to mean "worker" or "workers", respectively. The
terms "he," "his," or "him," appearing in this chapter shall be deemed
to mean "he or she," "his or her," and "him or her."
Definitions. As used in this chapter, 1. "Hazardous employment"
means a work or occupation described in section three of this chapter.
2. "Department" means the department of labor of the state of New
York;
"Chairman" means the chairman of the workers' compensation board of
the state of New York;
"Commissioner" means the industrial commissioner of the state of New
York;
"Board" means the workers' compensation board of the state of New
York;
"Commissioners" means the commissioners of the state insurance fund of
the department of labor of the state of New York.
3. "Employer," except when otherwise expressly stated, means a person,
partnership, association, corporation, and the legal representatives of
a deceased employer, or the receiver or trustee of a person,
partnership, association or corporation, having one or more persons in
employment, including the state, a municipal corporation, fire district
or other political subdivision of the state, and every authority or
commission heretofore or hereafter continued or created by the public
authorities law. For the purposes of this chapter only "employer" shall
also mean a person, partnership, association, corporation, and the legal
representatives of a deceased employer, or the receiver or trustee of a
person, partnership, association or corporation who delivers or causes
to be delivered newspapers or periodicals for delivering or selling and
delivering by a newspaper carrier under the age of eighteen years as
defined in section thirty-two hundred twenty-eight of the education law,
but shall not include delivering newspapers or shopping news to the
consumer (including any services directly related to such trade or
business) by a person who is not performing commercial goods
transportation services for a commercial goods transportation contractor
within the meaning of article twenty-five-C of the labor law. For the
purpose of this chapter only, "employer" shall also mean a person,
partnership, association, or corporation who leases or otherwise
contracts with an operator or lessee for the purpose of driving,
operating or leasing a taxicab as so defined in section one hundred
forty-eight-a of the vehicle and traffic law, except where such person
is an owner-operator of such taxicab who personally regularly operates
such vehicle an average of forty or more hours per week and leases such
taxicab for some portion of the remaining time, and except if the
taxicab is a livery subject to section eighteen-c of this chapter, in
which case the livery driver's employer shall only be such employer as
is defined in that section. For the purposes of this section only, such
an owner-operator shall be deemed to be an employer if he controls,
directs, supervises, or has the power to hire or terminate such other
person who leases the vehicle.
Notwithstanding any other provision of this chapter and for purposes
of this chapter only, "employer" shall mean, with respect to a jockey,
apprentice jockey or exercise person licensed under article two or four
of the racing, pari-mutuel wagering and breeding law, and at the
election of the New York Jockey Injury Compensation Fund, Inc., with the
approval of the New York state gaming commission, employees of licensed
trainers or owners, performing services for an owner or trainer in
connection with the training or racing of a horse at a facility of a
racing association or corporation subject to article two or four of the
racing, pari-mutuel wagering and breeding law and subject to the
jurisdiction of the New York state gaming commission, The New York
Jockey Injury Compensation Fund, Inc. and all owners and trainers who
are licensed or required to be licensed under article two or four of the
racing, pari-mutuel wagering and breeding law at the time of any
occurrence for which benefits are payable pursuant to this chapter in
respect to the injury or death of such jockey, apprentice jockey,
exercise person or, if approved by the New York state gaming commission,
employee of a licensed trainer or owner.
Notwithstanding any other provision of this chapter, and for purposes
of this chapter only, the employer of a black car operator, as defined
in article six-F of the executive law, shall, on and after the fund
liability date, as defined in such article, be the New York black car
operators' injury compensation fund, inc. created pursuant to such
article.
For the purpose of this chapter only, whether a livery base operating
in any locality where liveries must register with a local taxi and
limousine commission shall be deemed the "employer" of any livery driver
engaging in covered services shall be determined in accordance with
section eighteen-c of this chapter.
4. "Employee" means a person engaged in one of the occupations
enumerated in section three of this article or who is in the service of
an employer whose principal business is that of carrying on or
conducting a hazardous employment upon the premises or at the plant, or
in the course of his or her employment away from the plant of his or her
employer; "employee" shall also mean for the purposes of this chapter
any individual performing services in construction for a contractor who
does not overcome the presumption of employment as provided under
section eight hundred sixty-one-c of the labor law; "employee" shall
also mean for the purposes of this chapter any individual performing
services in the commercial goods transportation industry for a
commercial goods transportation contractor who does not overcome the
presumption of employment as provided under section eight hundred
sixty-two-b of the labor law; "employee" shall also mean for the
purposes of this chapter civil defense volunteers who are personnel of
volunteer agencies sponsored or authorized by a local office under
regulations of the civil defense commission, to the extent of the
provisions of groups seventeen and nineteen; "employee" shall at the
election of a municipal corporation made pursuant to local law duly
enacted also mean a member of an auxiliary police organization
authorized by local law; and for the purposes of this chapter only a
newspaper carrier under the age of eighteen years as defined in section
thirty-two hundred twenty-eight of the education law, but shall not
include delivery of newspapers or shopping news to the consumer
(including any services directly related to such trade or business) by a
person who is not performing commercial goods transportation services
for a commercial goods transportation contractor within the meaning of
article twenty-five-C of the labor law, and shall not include domestic
servants except as provided in section three of this chapter, and except
where the employer has elected to bring such employees under the law by
securing compensation in accordance with the terms of section fifty of
this chapter. The term "employee" shall not include persons who are
members of a supervised amateur athletic activity operated on a
non-profit basis, provided that said members are not also otherwise
engaged or employed by any person, firm or corporation participating in
said athletic activity, nor shall it include the spouse or minor child
of an employer who is a farmer unless the services of such spouse or
minor child shall be engaged by said employer under an express contract
of hire nor shall it include an executive officer of a corporation who
at all times during the period involved owns all of the issued and
outstanding stock of the corporation and holds all of the offices
pursuant to paragraph (e) of section seven hundred fifteen of the
business corporation law or two executive officers of a corporation who
at all times during the period involved between them own all of the
issued and outstanding stock of such corporation and hold all such
offices except as provided in subdivision six of section fifty-four of
this chapter provided, however, that where there are two executive
officers of a corporation each officer must own at least one share of
stock, nor shall it include a self-employed person or a partner of a
partnership as defined in section ten of the partnership law who is not
covered under a compensation insurance contract or a certificate of
self-insurance as provided in subdivision eight of section fifty-four of
this chapter, nor shall it include farm laborers except as provided in
group fourteen-b of section three of this chapter. If a farm labor
contractor recruits or supplies farm laborers for work on a farm, such
farm laborers shall for the purposes of this chapter be deemed to be
employees of the owner or lessee of such farm. The term "employee" shall
not include baby sitters as defined in subdivision three of section one
hundred thirty-one and subdivision three of section one hundred
thirty-two of the labor law or minors fourteen years of age or over
engaged in casual employment consisting of yard work and household
chores in and about a one family owner-occupied residence or the
premises of a non-profit, non-commercial organization, not involving the
use of power-driven machinery. The term "employee" shall not include
persons engaged by the owner in casual employment consisting of yard
work, household chores and making repairs to or painting in and about a
one-family owner-occupied residence. The term "employee" shall not
include the services of a licensed real estate broker or sales associate
if it be proven that (a) substantially all of the remuneration (whether
or not paid in cash) for the services performed by such broker or sales
associate is directly related to sales or other output (including the
performance of services) rather than to the number of hours worked; (b)
the services performed by the broker or sales associate are performed
pursuant to a written contract executed between such broker or sales
associate and the person for whom the services are performed within the
past twelve to fifteen months; and (c) the written contract provided for
in paragraph (b) of this subdivision was not executed under duress and
contains the following provisions:
(i) that the broker or sales associate is engaged as an independent
contractor associated with the person for whom services are performed
pursuant to article twelve-A of the real property law and shall be
treated as such for all purposes, including but not limited to federal
and state taxation, withholding, unemployment insurance and workers'
compensation;
(ii) that the broker or sales associate (A) shall be paid a commission
on his or her gross sales, if any, without deduction for taxes, which
commission shall be directly related to sales or other output; (B) shall
not receive any remuneration related to the number of hours worked; and
(C) shall not be treated as an employee with respect to such services
for federal and state tax purposes;
(iii) that the broker or sales associate shall be permitted to work
any hours he or she chooses;
(iv) that the broker or sales associate shall be permitted to work out
of his or her own home or the office of the person for whom services are
performed;
(v) that the broker or sales associate shall be free to engage in
outside employment;
(vi) that the person for whom the services are performed may provide
office facilities and supplies for the use of the broker or sales
associate, but the broker or sales associate shall otherwise bear his or
her own expenses, including but not limited to automobile, travel, and
entertainment expenses;
(vii) that the person for whom the services are performed and the
broker or sales associate shall comply with the requirements of article
twelve-A of the real property law and the regulations pertaining
thereto, but such compliance shall not affect the broker or sales
associate's status as an independent contractor nor should it be
construed as an indication that the broker or sales associate is an
employee of the person for whom the services are performed for any
purpose whatsoever;
(viii) that the contract and the association created thereby may be
terminated by either party thereto at any time upon notice given to the
other.
"Employee" shall also mean, for purposes of this chapter, an infant
rendering services for the public good as prescribed in sections seven
hundred fifty-eight-a and 353.6 of the family court act.
For the purpose of this chapter only, "employee" shall also mean a
driver, operator or lessee who contracts with an owner, operator or
lessor for the purpose of operating a taxicab as so defined in section
one hundred forty-eight-a of the vehicle and traffic law, except where
such person leases the taxicab from a person who personally, regularly
operates such vehicle an average of forty or more hours per week, and
except if the taxicab is a livery subject to section eighteen-c of this
chapter, in which case the livery driver's employer shall only be such
employer as is defined in that section. For the purposes of this section
only, such person shall be deemed to be an employee of the
owner-operator if the owner-operator controls, directs, supervises, or
has the power to hire or terminate such person.
"Employee" shall also mean, for purposes of this chapter, a
professional musician or a person otherwise engaged in the performing
arts who performs services as such for a television or radio station or
network, a film production, a theatre, hotel, restaurant, night club or
similar establishment unless, by written contract, such musician or
person is stipulated to be an employee of another employer covered by
this chapter. "Engaged in the performing arts" shall mean performing
service in connection with the production of or performance in any
artistic endeavor which requires artistic or technical skill or
expertise.
Notwithstanding any other provision of this chapter, and for purposes
of this chapter only, a jockey, apprentice jockey or exercise person
licensed under article two or four of the racing, pari-mutuel wagering
and breeding law, and at the election of the New York Jockey Injury
Compensation Fund, Inc., with the approval of the New York state gaming
commission, employees of licensed trainers or owners, performing
services for an owner or trainer in connection with the training or
racing of a horse at a facility of a racing association or corporation
subject to article two or four of the racing, pari-mutuel wagering and
breeding law and subject to the jurisdiction of the New York state
gaming commission shall be regarded as the "employee" not solely of such
owner or trainer, but shall instead be conclusively presumed to be the
"employee" of The New York Jockey Injury Compensation Fund, Inc. and
also of all owners and trainers who are licensed or required to be
licensed under article two or four of the racing, pari-mutuel wagering
and breeding law at the time of any occurrence for which benefits are
payable pursuant to this chapter in respect of the injury or death of
such jockey, apprentice jockey, exercise person or, if approved by the
New York state gaming commission, employee of a licensed trainer or
owner.
"Employee" shall also mean, for purposes of this chapter, a
professional model, who:
(a) performs modeling services for; or
(b) consents in writing to the transfer of his or her exclusive legal
right to the use of his or her name, portrait, picture or image, for
advertising purposes or for the purposes of trade, directly to
a retail store, a manufacturer, an advertising agency, a photographer,
a publishing company or any other such person or entity, which dictates
such professional model's assignments, hours of work or performance
locations and which compensates such professional model in return for a
waiver of such professional model's privacy rights enumerated above,
unless such services are performed pursuant to a written contract
wherein it is stated that such professional model is the employee of
another employer covered by this chapter. For the purposes of this
paragraph, the term "professional model" means a person who, in the
course of his or her trade, occupation or profession, performs modeling
services. For purposes of this paragraph, the term "modeling services"
means the appearance by a professional model in photographic sessions or
the engagement of such model in live, filmed or taped modeling
performances for remuneration.
Notwithstanding any other provision of this chapter, and for purposes
of this chapter only, a black car operator, as defined in article six-F
of the executive law, shall, on and after the fund liability date, as
defined in such article, be an "employee" of the New York black car
operators' injury compensation fund, inc. created pursuant to such
article.
"Employee" shall not include, for the purposes of this chapter, the
services of a licensed insurance agent or broker if it be proven that
(a) substantially all of the remuneration (whether or not paid in cash)
for the services performed by such agent or broker is directly related
to sales or other output (including the performance of services) rather
than to the number of hours worked; (b) such agent is not a life
insurance agent receiving a training allowance subsidy described in
paragraph three of subsection (e) of section four thousand two hundred
twenty-eight of the insurance law; (c) the services performed by the
broker or sales associate are performed pursuant to a written contract
executed between such broker or sales associate and the person for whom
the services are performed; and (d) the written contract provided for in
clause (c) of this paragraph was not executed under duress and contains
the following provisions:
(i) that the agent or broker is engaged as an independent contractor
associated with the person for whom services are performed pursuant to
article twenty-one of the insurance law and shall be treated as such for
all purposes, including but not limited to federal and state taxation,
withholding (other than federal insurance contributions act (FICA) taxes
required for full time life insurance agents pursuant to section
3121(d)(3) of the federal internal revenue code), unemployment insurance
and workers' compensation;
(ii) that the agent or broker (1) shall be paid a commission on his or
her gross sales, if any, without deduction for taxes (other than federal
insurance contributions act (FICA) taxes required for full time life
insurance agents pursuant to section 3121(d)(3) of the federal internal
revenue code), which commission shall be directly related to sales or
other output; (2) shall not receive any remuneration related to the
number of hours worked; and (3) shall not be treated as an employee with
respect to such services for federal and state tax purposes (other than
federal insurance contributions act (FICA) taxes required for full time
life insurance agents pursuant to section 3121(d)(3) of the federal
internal revenue code);
(iii) that the agent or broker shall be permitted to work any hours he
or she chooses;
(iv) that the agent or broker shall be permitted to work out of his or
her own office or home or the office of the person for whom services are
performed;
(v) that the person for whom the services are performed may provide
office facilities, clerical support, and supplies for the use of the
agent or broker, but the agent or broker shall otherwise bear his or her
own expenses, including but not limited to automobile, travel, and
entertainment expenses;
(vi) that the person for whom the services are performed and the agent
or broker shall comply with the requirements of article twenty-one of
the insurance law and the regulations pertaining thereto, but such
compliance shall not affect the agent's or broker's status as an
independent contractor nor should it be construed as an indication that
the agent or broker is an employee of the person for whom the services
are performed for any purpose whatsoever;
(vii) that the contract and the association created thereby may be
terminated by either party thereto at any time with notice given to the
other.
"Employee" shall not include a media sales representative if it be
proven that (a) substantially all of the compensation for the services
performed by such media sales representative is directly related to
sales or other productivity rather than to the number of hours worked;
(b) the media sales representative must be incorporated under the laws
of this state in order to be considered an independent contractor and
shall be solely responsible for the payment of workers' compensation
premiums; (c) the services performed by the media sales representative
are performed pursuant to a written contract executed between such media
sales representative and the person for whom the services are performed;
and (d) the written contract provided for in subparagraph (c) of this
paragraph was not executed under duress and contains the following
provisions:
(i) that the media sales representative is engaged as an independent
contractor associated with the person for whom services are performed
and shall be treated as such for all purposes, including but not limited
to federal and state taxation, withholdings, and workers' compensation;
(ii) that the media sales representative (A) shall be paid a
commission based on a fixed fee rate outlined in the written contract,
if any, without deduction for taxes, which commission shall be directly
related to sales pursuant to price guidelines or other productivity
within the sales area; (B) shall not receive any compensation related to
the number of hours worked; and (C) shall not be treated as an employee
with respect to such services for federal and state tax purposes;
(iii) that the media sales representative shall be permitted to work
any hours he or she chooses subject to the restrictions in section three
hundred ninety-nine-p of the general business law;
(iv) that the media sales representative may work at any site other
than on the premises of the person for whom services are performed;
(v) that the person for whom the services are performed shall not be
responsible for any reimbursement expenses other than those outlined in
the written contract;
(vi) that the person for whom the services are performed and the media
sales representative shall comply with all articles of the labor law
that apply to such work other than article eighteen of the labor law,
but such compliance shall not affect the media sales representative's
status as an independent contractor nor shall it be construed as an
indication that the media sales representative is an employee of the
person for whom the services are performed for any purpose whatsoever;
and
(vii) that the contract and the association created thereby may be
terminated by the media sales representative thereto at any time with
two weeks notice given to the person for whom the services are
performed.
For the purposes of this subdivision, "media sales representative"
shall include any contractor engaged in the sale or renewal of magazine
subscriptions or the sale or renewal of magazine advertising space who
(i) receives no direction or control on the methods by which they
perform services other than training on product characteristics, (ii)
are solely in control of their work schedule, and (iii) may refuse any
work assignment.
For the purpose of this chapter only, whether a livery driver
dispatched by an independent livery base, as those terms are defined in
article six-G of the executive law, is an "employee" shall be determined
in accordance with section eighteen-c of this chapter.
5. "Employment" includes employment in a trade, business or occupation
carried on by the employer for pecuniary gain, or in connection
therewith, except where the employer elects to bring his or her
employees within the provisions of this chapter as provided in section
three of this article, and except employment as a domestic worker as
provided in section three of this article, and except where a town
elects to have the provisions of this chapter apply to the town
superintendent of highways. "Employment" shall also include, in
connection with the civil defense effort and for purposes of this
chapter the service of a civil defense volunteer in authorized
activities of a volunteer agency sponsored or authorized by a local
office as defined in a state defense emergency act. "Employment" shall
also include participation with an auxiliary police effort made within a
municipal corporation which elected to include auxiliary police officers
within the definition of "employee" as authorized by subdivision four of
this section and for purposes of this chapter, the services of members
or volunteers in activities authorized by local law. The service of a
civil defense volunteer who is also an employee recompensed by an
employer for service to such employer, shall not be deemed to be in
employment of a local office when he or she is performing civil defense
service in his or her employment or in relation thereto. For the
purposes of this chapter only "employment" shall also include the
delivery or sale and delivery of newspapers or periodicals by a
newspaper carrier as defined in section thirty-two hundred twenty-eight
of the education law, but shall not include delivery of newspapers or
shopping news to the consumer (including any services directly related
to such trade or business) by a person who is not performing commercial
goods transportation services for a commercial goods transportation
contractor within the meaning of article twenty-five-C of the labor law.
The term "employment" shall not include the services of a licensed real
estate broker or sales associate if it be proven that (a) substantially
all of the remuneration (whether or not paid in cash) for the services
performed by such broker or sales associate is directly related to sales
or other output (including the performance of services) rather than to
the number of hours worked; (b) the services performed by the broker or
sales associate are performed pursuant to a written contract executed
between such broker or sales associate and the person for whom the
services are performed within the past twelve to fifteen months; and (c)
the written contract provided for in paragraph (b) herein was not
executed under duress and contains the following provisions:
(i) that the broker or sales associate is engaged as an independent
contractor associated with the person for whom services are performed
pursuant to article twelve-A of the real property law and shall be
treated as such for all purposes, including but not limited to federal
and state taxation, withholding, unemployment insurance and workers'
compensation;
(ii) that the broker or sales associate (A) shall be paid a commission
on his or her gross sales, if any, without deduction for taxes, which
commission shall be directly related to sales or other output; (B) shall
not receive any remuneration related to the number of hours worked; and
(C) shall not be treated as an employee with respect to such services
for federal and state tax purposes;
(iii) that the broker or sales associate shall be permitted to work
any hours he or she chooses;
(iv) that the broker or sales associate shall be permitted to work out
of his or her own home or the office of the person for whom services are
performed;
(v) that the broker or sales associate shall be free to engage in
outside employment;
(vi) that the person for whom the services are performed may provide
office facilities and supplies for the use of the broker or sales
associate, but the broker or sales associate shall otherwise bear his or
her own expenses, including but not limited to automobile, travel, and
entertainment expenses;
(vii) that the person for whom the services are performed and the
broker or sales associate shall comply with the requirements of article
twelve-A of the real property law and the regulations pertaining
thereto, but such compliance shall not affect the broker or sales
associate's status as an independent contractor nor should it be
construed as an indication that the broker or sales associate is an
employee of the person for whom the services are performed for any
purpose whatsoever;
(viii) that the contract and the association created thereby may be
terminated by either party thereto at any time upon notice given to the
other.
For the purpose of this chapter only, "employment" shall also include
the service of a driver, operator or lessee of a taxicab as so defined
in section one hundred forty-eight-a of the vehicle and traffic law,
except where a person leases a taxicab from an owner-operator of a
taxicab who, regularly operates the vehicle an average of forty or more
hours per week. Such a lessee shall be deemed to be in employment if the
lessor controls, directs, supervises, or has the power to hire or
terminate the lessee.
Notwithstanding any other provision of this chapter, and for purposes
of this chapter only, a jockey, apprentice jockey or exercise person
licensed under article two or four of the racing, pari-mutuel wagering
and breeding law, and at the election of the New York Jockey Injury
Compensation Fund, Inc., with the approval of the New York state gaming
commission, employees of licensed trainers or owners, performing
services for an owner or trainer in connection with the training or
racing of a horse at a facility of a racing association or corporation
subject to article two or four of the racing, pari-mutuel wagering and
breeding law and subject to the jurisdiction of the New York state
gaming commission shall be regarded as in the "employment" not solely of
such owner and trainer, but shall instead be conclusively presumed to be
in the "employment" of The New York Jockey Injury Compensation Fund,
Inc. and of all owners and trainers who are licensed or required to be
licensed under article two or four of the racing, pari-mutuel wagering
and breeding law, at the time of any occurrence for which benefits are
payable pursuant to this chapter in respect of the injury or death of
such jockey, apprentice jockey, exercise person or, if approved by the
New York state gaming commission, employee of a licensed trainer or
owner. For the purpose of this chapter only, whether a livery driver's
performance of covered services, as those terms are defined in article
six-G of the executive law, constitutes "employment" shall be determined
in accordance with section eighteen-c of this chapter.
Notwithstanding any other provision of this chapter, and for purposes
of this chapter only, a black car operator, as that term is defined in
article six-F of the executive law, shall, on and after the fund
liability date, as that term is defined in such article, be regarded as
in the "employment" of the New York black car operators' injury
compensation fund, inc. created pursuant to such article.
"Employment" shall not include, for the purposes of this chapter, the
services of a licensed insurance agent or broker if it be proven that
(a) substantially all of the remuneration (whether or not paid in cash)
for the services performed by such agent or broker is directly related
to sales or other output (including the performance of services) rather
than to the number of hours worked; (b) such agent is not a life
insurance agent receiving a training allowance subsidy described in
paragraph three of subsection (e) of section four thousand two hundred
twenty-eight of the insurance law; (c) the services performed by the
agent or broker are performed pursuant to a written contract executed
between such agent or broker and the person for whom the services are
performed; and (d) the written contract provided for in clause (c) of
this paragraph was not executed under duress and contains the following
provisions:
(i) that the agent or broker is engaged as an independent contractor
associated with the person for whom services are performed pursuant to
article twenty-one of the insurance law and shall be treated as such for
all purposes, including but not limited to federal and state taxation,
withholding (other than federal insurance contributions act (FICA) taxes
required for full time life insurance agents pursuant to section
3121(d)(3) of the federal internal revenue code), unemployment insurance
and workers' compensation;
(ii) that the agent or broker (1) shall be paid a commission on his or
her gross sales, if any, without deduction for taxes (other than federal
insurance contributions act (FICA) taxes required for full time life
insurance agents pursuant to section 3121(d)(3) of the federal internal
revenue code), which commission shall be directly related to sales or
other output; (2) shall not receive any remuneration related to the
number of hours worked; and (3) shall not be treated as an employee with
respect to such services for federal and state tax purposes (other than
federal insurance contributions act (FICA) taxes required for full time
life insurance agents pursuant to section 3121(d)(3) of the federal
internal revenue code);
(iii) that the agent or broker shall be permitted to work any hours he
or she chooses;
(iv) that the agent or broker shall be permitted to work out of his or
her own office or home or the office of the person for whom services are
performed;
(v) that the person for whom the services are performed may provide
office facilities, clerical support, and supplies for the use of the
agent or broker, but the agent or broker shall otherwise bear his or her
own expenses, including but not limited to automobile, travel, and
entertainment expenses;
(vi) that the person for whom the services are performed and the agent
or broker shall comply with the requirements of article twenty-one of
the insurance law and the regulations pertaining thereto, but such
compliance shall not affect the agent's or broker's status as an
independent contractor nor should it be construed as an indication that
the agent or broker is an employee of the person for whom the services
are performed for any purpose whatsoever;
(vii) that the contract and the association created thereby may be
terminated by either party thereto at any time with notice given to the
other.
"Employment" shall not include the services of a media sales
representative if it be proven that (A) substantially all of the
compensation for the services performed by such media sales
representative is directly related to sales or other productivity rather
than to the number of hours worked; (B) the media sales representative
must be incorporated under the laws of this state in order to be
considered an independent contractor and shall be solely responsible for
the payment of workers' compensation premiums; (C) the services
performed by the media sales representative are performed pursuant to a
written contract executed between such media sales representative and
the person for whom the services are performed; and (D) the written
contract provided for in subparagraph (C) of this paragraph was not
executed under duress and contains the following provisions:
(i) that the media sales representative is engaged as an independent
contractor associated with the person for whom services are performed
and shall be treated as such for all purposes, including but not limited
to federal and state taxation, withholdings, and workers' compensation;
(ii) that the media sales representative (A) shall be paid a
commission, based on a fixed fee rate outlined in the written contract,
if any, without deduction for taxes, which commission shall be directly
related to sales pursuant to price guidelines or other productivity
within the sales area; (B) shall not receive any compensation related to
the number of hours worked; and (C) shall not be treated as an employee
with respect to such services for federal and state tax purposes;
(iii) that the media sales representative shall be permitted to work
any hours he or she chooses subject to the restrictions in section three
hundred ninety-nine-p of the general business law;
(iv) that the media sales representative may work at any site other
than on the premises of the person for whom services are performed;
(v) that the person for whom the services are performed shall not be
responsible for any reimbursement expenses other than those outlined in
the written contract;
(vi) that the person for whom the services are performed and the media
sales representative shall comply with all articles of the labor law
that apply to such work other than article eighteen of the labor law,
but such compliance shall not affect the media sales representative's
status as an independent contractor nor shall it be construed as an
indication that the media sales representative is an employee of the
person for whom the services are performed for any purpose whatsoever;
and
(vii) that the contract and the association created thereby may be
terminated by the media sales representative thereto at any time with
two weeks notice given to the person for whom the services are
performed.
For the purposes of this subdivision, "media sales representative"
shall include any contractor engaged in the sale or renewal of magazine
subscriptions or the sale or renewal of magazine advertising space who
(i) receives no direction or control on the methods by which they
perform services other than training on product characteristics, (ii)
are solely in control of their work schedule, and (iii) may refuse any
work assignment.
6. "Compensation" means the money allowance payable to an employee or
to his dependents as provided for in this chapter, and includes funeral
benefits provided therein.
7. "Injury" and "personal injury" mean only accidental injuries
arising out of and in the course of employment and such disease or
infection as may naturally and unavoidably result therefrom. The terms
"injury" and "personal injury" shall not include an injury which is
solely mental and is based on workrelated stress if such mental injury
is a direct consequence of a lawful personnel decision involving a
disciplinary action, work evaluation, job transfer, demotion, or
termination taken in good faith by the employer.
8. "Death" when mentioned as a basis for the right to compensation
means only death resulting from such injury.
9. "Wages" means the money rate at which the service rendered is
recompensed under the contract of hiring in force at the time of the
accident, including the reasonable value of board, rent, housing,
lodging or similar advantage received from the employer, or in the case
of (a) a civil defense volunteer, (b) a volunteer worker in a state
department as provided in group sixteen of subdivision one of section
three of this chapter, (c) a volunteer worker for a social services
district as provided in group seventeen of subdivision one of section
three of this chapter, (d) a county fire coordinator, a deputy county
fire coordinator or a comparable county official to whom the provisions
of group fifteen-a of subdivision one of section three of this chapter
are applicable, who is also a volunteer firefighter or ambulance worker,
(e) a fire district officer whether elective or appointive and whether
or not he or she is compensated for his or her services or a paid fire
or ambulance district employee, (f) a state fire instructor whose
compensation is paid in whole or in part by the state, (g) an enrolled
member of a fire company who, is not a volunteer firefighter, receives
compensation for his or her services and is not a full-time firefighter,
known as a "call firefighter", (h) persons who are performing services
for a public or not-for-profit corporation, association, institution or
agency organized as an unincorporated association or duly incorporated
under the laws of this state in fulfillment of a sentence of probation
or of conditional discharge, or persons performing such services
pursuant to the provisions of section 170.55 or 170.56 of the criminal
procedure law, (i) an auxiliary police officer in a municipal
corporation which elected to include such persons within the definition
of "employee" as authorized by subdivision four of this section, or (j)
a duly appointed member of a regional hazardous materials incidents team
recognized under section two hundred nine-y of the general municipal
law, such money rate applying in his or her regular vocation or the
amount of the regular earnings of such volunteer, coordinator,
instructor, or comparable officer, fire or ambulance district officer or
employee or call firefighter, or team member as the case may be, in his
or her regular vocation, plus any amount earned as such a coordinator,
instructor or comparable officer, or as such a fire or ambulance
district officer or employee or call firefighter or team member,
provided, however, that in no event shall the average weekly wage be
fixed at less than thirty dollars regardless of whether or not such
volunteer, coordinator, instructor or comparable officer or fire or
ambulance district officer or employee or call firefighter or team
member had gainful employment elsewhere at the time of the injury.
The wages of a livery driver, as defined in article six-G of the
executive law, shall be calculated in accordance with this paragraph.
The chair shall promulgate regulations, in consultation with the
independent livery driver benefit fund, and all local taxi and limousine
commissions, as defined in article six-G of the executive law,
establishing amounts that livery drivers are presumptively deemed to
receive in annual wages, and may vary such presumptive wage by such
geographic region or political subdivision of the state as the chair may
set. Such regulations may establish other factors or criteria for
determining the presumptive wage. The presumptive wage shall be set
based on the chair's findings as to the amount earned by livery drivers,
and their expenses. A livery driver or the livery driver's employer,
including the independent livery driver benefit fund, may rebut the
presumptive wage by competent evidence that the driver's actual wages
for covered services, as defined in article six-G of the executive law,
were different. The chair shall promulgate such other rules as are
necessary to compute livery driver wages in accordance with this
paragraph.
10. "State fund" means the state insurance fund provided for in
article five of this chapter.
11. "Child" shall include a posthumous child, a child legally adopted
prior to the injury of the employee; and a step-child or child born out
of wedlock dependent upon the deceased.
12. "Insurance carrier" shall include the state fund, stock
corporations, mutual corporations or reciprocal insurers with which
employers have insured, and employers permitted to pay compensation
directly under the provisions of subdivisions three, three-a or four of
section fifty of this chapter. For purposes of this chapter, a nonprofit
property/casualty insurance company which is licensed pursuant to
subsection (b) of section six thousand seven hundred four of the
insurance law shall be deemed a stock corporation and a nonprofit
property/casualty insurance company which is licensed as a reciprocal
insurer pursuant to subsection (c) of section six thousand seven hundred
four of the insurance law shall be deemed a reciprocal insurer.
13. "Manufacture," "construction," "operation" and "installation"
shall include "repair," "demolition," "fabrication" and "alteration" and
shall include all work done in connection with the repair of plants,
buildings, grounds and approaches of all places where any of the
hazardous employments are being carried on, operated or conducted.
14. "Minor" means a person who has not attained the age of eighteen
years.
15. "Occupational disease" means a disease resulting from the nature
of employment and contracted therein.
16. "New York state average weekly wage" shall mean 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.
17. A "substantially owned affiliated entity" of any person means the
parent company of the person, any subsidiary of the person, or any
entity in which the parent of the person owns more than fifty percent of
the voting stock, or an entity in which one or more of the top five
shareholders of the person individually or collectively also owns a
controlling share of the voting stock, or an entity which exhibits any
other indicia of control over the person or over which the person
exhibits control, regardless of whether or not the controlling party or
parties have any identifiable or documented ownership interest. Such
indicia shall include: power or responsibility over employment
decisions; access to and/or use of the relevant entity's assets or
equipment; power or responsibility over contracts of the person;
responsibility for maintenance or submission of certified payroll
records; and influence over the business decisions of the relevant
entity.
19. A "claim for reimbursement" from the special disability fund means
an application to the board under paragraph (f) of subdivision eight of
section fifteen of this chapter for a determination that the special
disability fund is liable in the first instance for any reimbursement to
the insurance carrier, self-insured employer or state insurance fund.
20. A "request for reimbursement" from the special disability fund
means an application to the special disability fund for reimbursement
for specific costs, subsequent to a determination by the board that the
special disability fund is liable to provide reimbursement on the claim.
21. The "workers' compensation rating board" or the "New York workers'
compensation rating board" shall mean the compensation insurance rating
board until February first, two thousand eight, and thereafter the
superintendent of financial services or other entity designated by the
superintendent of financial services for collection and analysis of data
or such other purposes as set forth in this chapter.
22. "Cost of compensation" means the amount that an employer must pay
to secure compensation as calculated in accordance with regulation of
the board or, in the absence of such regulation, based on average market
rates for a comparable employer.
23. "Special disability fund advisory committee" shall mean an
advisory committee to the workers' compensation board, acting by a
majority thereof, solely with respect to the special fund entitled the
special disability fund, composed of the director of the budget, the
commissioner of labor, the commissioner of taxation and finance, the
chair of the workers' compensation board, and the superintendent of
financial services.
24. "Employees of licensed trainers or owners" means assistant
trainers, foremen, watchmen and stable employees, including grooms and
hot-walkers, employed by a trainer or owner licensed pursuant to article
two or four of the racing, pari-mutuel wagering and breeding law.
Application. 1. Hazardous employments. Compensation shall be
payable for injuries or death incurred by employees in the following
employments:
Group 1. Canning of:
Fish
Foodstuffs
Fruit
Vegetables
Group 2. Care of:
Buildings
Grounds
Trees
Group 3. Construction of:
Bridges
Buildings
Car shops
Conduits
Curbs
Dams
Dynamos
Electric light and power lines or appliances
Electric railways
Highways
Incline railways
Machine shops
Manufacturing plants
Power plants
Railways
Sewers
Sidewalks
Steam plants
Steam railways
Steel bridges and buildings
Street railways
Structures of all kinds
Subaqueous works
Subways
Telegraph lines
Telephone lines
Group 4. Installation of:
Boilers
Dynamos
Electric light and power
lines or appliances
Elevators
Engines, stationary
Fire escapes
Heating apparatus
Lighting apparatus
Machinery, heavy
Pipes
Telephones
Group 5. Laying of:
Cables
Floor coverings
Pipes
Tiles
Wires
Group 6. Manufacture of:
Acids
Adding machines
Aeroplanes
Agricultural implements
Aircraft
Alcohol
Ammonia
Ammunition
Anchors
Artificial ice or stone
Asbestos
Asphalt
Asphalted paper
Automobiles
Baby carriages, toy
Bags, cloth and paper
Barrels
Baskets
Beds
Bedsprings
Belting
Bicycles
Biscuits
Blacking or polish for shoes
Blankets
Boats, small
Boilers
Bolts
Bone articles
Boots
Boxes
Brick
Brooms
Brushes
Butter
Buttons
Cables
Calcium carbide
Cameras and supplies
Candles
Candy
Canoes
Canvas
Caps
Cardboard boxes
Carpets
Carpet sweepers
Carriage mountings
Carriages
Cash registers
Castings
Cattle foods
Celluloid
Cement
Cereals
Charcoal
Cheese
Cheese boxes
Chemical preparations, noncorosive
Chemicals
Cigarettes
Cigars
Cloth
Clothing
Coffins
Collars
Color
Concrete blocks
Condiments
Confectionery
Cordage
Corrosive acids or salts
Corrugated paper boxes
Corsets
Crackers
Cutlery
Dairy products
Door screens
Doors
Drugs
Dyes
Electric fixtures
Elevators
Engines, heavy and traction
Excelsior
Explosives
Extracts
Fabrics
Fabrics, articles from
Felt
Fertilizers
Fibre
Films for pictures
Firearms
Fire-proofing
Fixtures, water, gas or
electric
Foodstuffs
Forgings
Furnaces
Furniture
Furs
Gas fixtures
Gases
Gasoline
Gelatine
Glass
Glass products and wares
Gloves
Glue
Gold ware
Gun powder
Hardware
Harness
Hats
Headings
Hemp or manila products
Hose, rubber
Hosiery
Ice, artificial
Ice cream
Ink
Implements, agricultural
Instruments
Interior woodwork
Iron, structural
Ivory articles
Japans
Jewelry
Kegs
Leather goods and products
Light machines
Liquors
Locomotives
Machinery
Machines, adding, light and
threshing
Malt liquors
Manila or hemp products
Maltesses
Mattresses
Meat products
Meats
Medicines
Men's clothing
Metal articles, beds,
instruments, toys, utensils
and wares
Metal products, sheet
Metal, structural
Milk products
Mineral water
Motor vehicles
Mouldings
Moving picture films and machines
Nails
Oil
Organs
Paint
Paper
Paper boxes
Paper, tarred, pitched or asphalted
Paste
Paving blocks and material
Perfumes
Petroleum and products thereof
Pharmaceutical preparations
Photographic cameras and supplies
Pianos
Pipes
Pitched paper
Plaster, compounds of
Plated ware
Polish for shoes
Porcelain
Pottery
Printers' rollers
Printing ink
Pyroxylin and its compounds and plastics
Rails
Rattan ware
Registers, cash
Robes
Ropes
Rubber goods
Saddlery
Safes
Salts, or acids, corrosive
Sanitary fixtures
Screens, window and door
Screws
Shades, window
Shafting
Sheet metal and products thereof
Shell articles
Shirts
Shoddy
Shoe blacking or polish
Shoes
Silver ware
Sleighs
Soaps
Socks
Soda water
Spices
Spirituous, liquors
Spokes
Stationery
Staves
Steel, structural
Stockings
Stone, artificial
Stoves
Structural steel, iron or metal
Sweepers, carpet
Tar
Tarred paper
Terra-cotta
Textiles
Textiles, articles from
Thread
Threshing machines
Tile
Tires, rubber
Tobacco and products thereof
Toilet preparations
Tools
Toys, metal and wooden
Traction engines
Trunks
Tubing, metal and rubber
Tubs
Turpentine
Typewriters
Umbrellas
Utensils
Valises
Varnish
Vats
Vehicles
Veneer
Wagons
Wallpaper
Water fixtures
Waters, mineral or soda
Wax
White ware
Wicker ware
Window screens and shades
Wine
Wire and wire goods
Women's clothing
Wooden articles
Woodwork, interior
Yarn
Group 7. Operation of:
Aeroplanes
Air craft
Baling machines
Barges
Boats
Boilers, stationary
Cables, telegraph
Car shops
Cars
Dynamos
Electric light and power lines or appliances
Electric railways
Electric vehicles, rollers and engines
Elevators, freight,
passenger and grain
Engines, stationary and traction
Gas vehicles, rollers and engines
Gas wells
Gasoline vehicles, rollers and engines
Grain elevators
Hand trucks
Horse drawn vehicles, rollers
and engines
Incline railways
Lighters
Machine shops
Oil wells
Plants, power and other
Pressing machines
Railways
Rollers
Ships
Stationary engines and
boilers
Steam plants
Steam railways
Street railways
Telegraph lines
Telephone lines
Threshing machines
Traction engines
Transports
Trucks
Tug boats
Vehicles
Vessels
Wagons
Waterworks
Group 8. Preparation of:
Fish
Foodstuffs
Fruit
Gelatine
Meat stuffs
Meats
Metals
Minerals
Paste
Vegetables
Wax
Group 9. Removal of:
Ashes
Awnings
Garbage
Snow
Group 10. Sinking of:
Drilled wells
Gas wells
Oil wells
Salt wells
Group 11. Storage or handling of:
Ammunition
Cargoes
Corrosive acids or salts
Chemicals
Explosives
Gasoline
Gun powder
Ice
Petroleum
Group 12. Work as:
Barbers
Blacksmiths
Carpenters
Chauffeurs
Domestic workers, other than
those employed on farms, employed
by the same employer for a
minimum of forty hours per week
Drivers
Furriers
Garbage sorters
Horseshoers
Janitors
Jockeys, apprentice jockeys and exercise persons
licensed under article two or four of the racing,
pari-mutuel wagering and breeding law
Life guards
Longshoremen
Marble workers
Masons
Movers
Sheet metal workers
Teamsters
Theatrical electricians, flymen,
lamp operators, moving picture
machiners, property men, stage
carpenters and stage hands
Group 13. Work at:
Awning erection
Blasting
Bleaching
Boiler covering
Bookbinding
Booming timber or logs
Bottling
Bricklaying
Building, care, maintenance
and salvage
Cable laying or repair,
underground
Canning
Carpentry
Clam cultivating, harvesting,
Opening or planting
Cleaning clothes, streets,
windows, or buildings
Concreting
Cork cutting
Decorating
Disinfecting
Dredging
Dyeing
Electrotyping
Embossing
Engraving
Excavation
Glazing
Grave digging
Heating
Ice distribution, harvesting or storage
Landscape gardening
Lighting
Lithographing
Logging
Lumbering
Marble cutting
Marine wrecking
Milling
Mining
Multigraphing
Oyster cultivation, planting,
harvesting or opening
Ore reduction
Painting
Papering
Paving
Photo-engraving
Picture hanging
Pile driving
Pipe covering
Plastering
Plumbing
Printing
Rafting
Renovating
River-driving
Road building
Roofing
Salvaging of buildings
or contents
Sea food cultivation,
harvesting or planting
Shaft sinking
Ship building
Smelting
Stereotyping
Stone crushing,
cutting, dressing,
grinding or setting
Storage of all kinds and storage for hire
Street cleaning or construction
Structural carpentry
Subaquesous construction
Subway construction
Tree moving, planting,
trimming and surgery
Tunneling
Undertaking
Upholstering
Warehousing
Well digging or drilling
Window cleaning
Wrecking, marine
Group 14. Work in
Abattoirs
Bakeries
Bark mills
Boarding stables
Breweries
Caissons
Clay pits
Coal yards
Compressed air compartments
Dining cars
Distilleries
Express cars
Fish markets
Flax mills
Foundries
Garages
Garbage plants
Gravel pits
Groceries, wholesale
Hotels
Junk dealers' places
Knitting factories
Laboratories
Lath mills
Laundries
Life-saving stations
Lime kilns
Livery stables
Lumber yards
Machine shops
Markets, fish, meat, poultry
Meat markets
Packing houses
Paper mills
Parlor cars
Pickle factories
Planing mills
Poultry markets
Printing plants
Pulp mills
Quarries
Restaurants and Grills
Rolling mills
Sales stables
Sand pits
Sash and door factories
Saw mills
Sewage disposal plants
Shale pits
Shingle mills
Sleeping cars
Spinning manufactories
Stables, livery, boarding or sales
Storage warehouses
Sugar refineries
Tanneries
Weaving manufactories
Wholesale groceries
Group 14-a. On and after January first, nineteen hundred sixty-two,
any other employment in a trade, business, or occupation carried on by
the employer for pecuniary gain in which one or more employees are
employed.
Group 14-b. Employment as a farm laborer as provided herein. A farmer
shall provide coverage under this chapter for all farm laborers.
Group 15. Employment as a keeper, guard, resident physician, nurse,
interne, resident interne, assistant resident interne or orderly in a
prison reformatory, hospital for the mentally ill or hospital maintained
or operated by a municipal corporation or other subdivision of the
state, notwithstanding the definitions of the terms "employment,"
"employer" or "employee" in subdivisions three, four and five of section
two of this chapter.
Group 15-a. Employment as a county fire coordinator or as a deputy
county fire coordinator pursuant to section two hundred twenty-five-a or
section four hundred one of the county law, notwithstanding the
definitions of the terms "employer", "employee" or "employment" in
subdivisions three, four and five of section two of this chapter.
The terms "county fire coordinator" and "deputy county fire
coordinator," as used in this group, shall include any county official
who is not appointed pursuant to the provisions of section two hundred
twenty-five-a of the county law, but is appointed pursuant to the
provisions of a special law, a county charter or a county local law and
who is authorized or required to perform in the county the duties which
are similar to those of a county fire coordinator or deputy county fire
coordinator under such section of the county law and sections eight
hundred seven-a and eight hundred seven-b of the education law.
Group 16. Any employment by the state, including the employment of all
elected and appointed public officers, notwithstanding the definitions
of the terms "employment," "employer" or "employee," in subdivisions
three, four and five of section two of this chapter; but work as a civil
defense volunteer under the provisions of the state defense emergency
act shall not be deemed employment by the state. An employee engaged in
any employment herein whose wages are paid by a municipal corporation or
other subdivision of the state or by an employer other than the state
shall be deemed an employee of such municipal corporation or other
political subdivision of the state or such employer other than the state
for the purposes of this chapter. The head of any department of the
state government may, with the prior written approval of the director of
the budget, accept or approve the acceptance by any bureau, agency or
other unit within said department of the services of a volunteer worker
without salary, and such a volunteer worker shall be deemed to be an
employee in the employment of the state in the unclassified service for
the purpose of this chapter.
Group 17. Any employment carried on by a municipal corporation or
other subdivision of the state and enumerated in the foregoing groups
one to fourteen, inclusive, and on and after July first, nineteen
hundred fifty-one, other such employment to the extent of authorized
services related to civil defense and performed by employees in the
course of employment or in relation thereto; and the sheriff and
undersheriff of any county and the duly appointed regular deputies of
the sheriff, notwithstanding the definition of the term "employment" in
subdivision five of section two of this chapter; but employment in the
department of sanitation of the city of New York in the sanitation
service classification of the classified civil service of such city
shall not be within the coverage of this chapter. The activities of
civil defense volunteers who are auxiliary firefighters and members of
rescue squads in authorized services while undergoing training or
practice sponsored or authorized by a local office of civil defense, as
defined in the state defense emergency act, and on and after July first,
nineteen hundred fifty-three, the activities of all civil defense
volunteers who are personnel of such local office of civil defense in
authorized services during authorized participation in training and
practice exercises held at the direction of or designated as state
training and practice exercises by the state civil defense commission
pursuant to the provisions of section twenty-one, subdivision three-f of
the state defense emergency act, are hazardous employments carried on by
the municipal corporation or other subdivision of the state that created
the local office under the state defense emergency act and such members
of an auxiliary police organization located in a municipal corporation
which elected to include such persons within the definition of
"employee" as authorized by subdivision four of section two of this
chapter shall be deemed employees of the municipal corporation
authorizing their services, and such members of rescue squads, auxiliary
firefighters, and civil defense volunteers shall be deemed employees of
the municipal corporation or other subdivision of the state for purposes
of this chapter, provided, however, that each such municipal corporation
or other subdivision of the state or insurance carrier shall in the
first instance pay all awards of workers' compensation, including
medical benefits, provided by this chapter; and such municipal
corporation or other subdivision of the state or insurance carrier shall
be reimbursed by the comptroller of the state of New York, periodically
every six months, on vouchers certified by the state civil defense
commission, for one-half of all workers' compensation benefits,
including both cash and medical benefits, paid pursuant to awards of the
board, to the extent not previously reimbursed, paid for injury or death
of a civil defense volunteer caused by an accident that arose out of and
in the course of any such training and practice exercise, held on and
after July first, nineteen hundred fifty-three, at the direction of or
designated as a state training and practice exercise by the state civil
defense commission pursuant to the provisions of section twenty-one,
subdivision three-f of the state defense emergency act. A town shall not
be deemed to be the employer of the officers and employees of a fire
district and shall not be liable for payment of compensation to such
officers or employees under any provision of this chapter. A social
services official, as defined in subdivision fourteen of section two of
the social services law, may accept or approve the services of volunteer
workers without salary, in accordance with the regulations of the state
department of social services, and such a voluntary worker shall be
deemed to be an employee of the social services district in the
unclassified service for the purpose of this chapter.
Group 18. All other employments, except persons engaged in a teaching
or nonmanual capacity in or for a religious, charitable or educational
institution, notwithstanding the definition of employment in subdivision
five of section two, not hereinbefore enumerated, carried on by any
person, firm or corporation in which there are engaged or employed one
or more employees regularly, in the same business or in or about the
same establishment either upon the premises or at the plant or away from
the plant of the employer, under any contract of hire, express or
implied, oral or written, except farm laborers and domestics other than
those within the coverage of this chapter pursuant to groups fourteen-b
and twelve respectively of this subdivision, unless the employer has
elected to bring such employees under the law by securing compensation
in accordance with the terms of section fifty of this chapter and
persons engaged in voluntary service not under contract of hire. A duly
ordained, commissioned or licensed minister, priest or rabbi, a sexton,
a christian science reader, or a member of a religious order, shall not
be deemed to be employed or engaged in employment under the terms of
this section. Recipients of charitable aid from a religious or
charitable institution who perform work in or for the institution which
is incidental to or in return for the aid conferred, and not under any
express contract of hire, shall not be deemed to be employed or engaged
in employment under the terms of this section. All persons who are
members of a supervised amateur athletic activity operated on a
non-profit basis shall not be deemed to be employed or engaged in
employment under the terms of this section, provided that said members
are not also otherwise engaged or employed by any person, firm or
corporation participating in said athletic activity. The terms
"religious, charitable or educational institution" mean a corporation,
unincorporated association, community chest, fund or foundation
organized and operated exclusively for religious, charitable or
educational purposes, no part of the net earnings of which inure to the
benefit of any private shareholder or individual.
Group 19. An employer may bring an employment that is not listed in
this section within the coverage of this chapter by securing
compensation to his employee or employees engaged in such employment in
accordance with section fifty of this chapter.
Any municipal corporation or other political subdivision of the state
may bring its employees or officers, elective or appointed or otherwise,
not enumerated in groups one to seventeen of subdivision one of this
section inclusive, of this chapter within the coverage of this chapter
by appropriate action of the legislative or governmental body of the
municipal corporation or political subdivision, notwithstanding the
definitions of the terms "employment," "employer" or "employee" in
subdivisions three, four and five of section two of this chapter; and by
separate and distinct action of said legislative or governmental body
may bring within the coverage of this chapter any group, as defined by
order of the New York state civil defense commission, of civil defense
volunteers not enumerated in group seventeen of subdivision one of this
section, who are personnel of a volunteer agency of the local office of
such municipal corporation or other political subdivision, as defined in
the state defense emergency act, as to their authorized civil defense
services to the extent not covered under article ten of this chapter.
Where one or more groups of such civil defense volunteers of a county
office of civil defense are not brought within the coverage of this
chapter by the county, a town or a village in such county or a city
participating in the consolidated county office of civil defense of such
county may, by separate and distinct action of its legislative or
governmental body, bring the members of such group or groups of duly
enrolled civil defense volunteers who are residents of and are enrolled
from such town, village or city within the coverage of this chapter
during any period when the county has not so provided; however, whenever
a county brings one or more groups of its civil defense volunteers
within the coverage of this chapter, such other coverage of members of
such group or groups by the town, village or city shall be deemed
terminated to the extent and as of the date coverage is afforded by the
county. A village may not provide such coverage during any period
coverage is provided by a town in which the village is located, except
where there is a deputy director of civil defense for a village not
wholly within one town.
A public or not-for-profit corporation, association, institution or
agency organized as an unincorporated association or duly incorporated
under the laws of this state shall be deemed to be an employer of
persons who are performing services for it pursuant to paragraphs (h)
and (i) of subdivision two of section 65.10 of the penal law in
fulfillment of a sentence of probation or of conditional discharge and
of persons performing such services pursuant to the provisions of
section 170.55 or 170.56 of the criminal procedure law, and such persons
shall for the purposes of this chapter be deemed to be employees for the
public or not-for-profit corporation, association, institution or
agency. Said employer may elect to bring such employees within the
coverage of this chapter by securing compensation in accordance with the
terms of section fifty of this chapter.
Group 20. In a city having a population of one million or more,
teachers, regular or substitute, of shop work, manual training,
industrial or trade subjects, mechanic arts, textiles, machine shop
assistants, laboratory assistants, laboratory specialists, laboratory
technicians, and teachers of any subject, trade, or employment
requiring, for instruction purposes, use of tools or machinery for which
protective, guarding or safety devices are required by the labor law,
may elect to receive the benefits prescribed by this chapter provided
they are not qualified to receive benefits even if eligible to apply for
retirement under the teachers' retirement system in said city. An
election to come within this chapter shall constitute a waiver of any
right to receive absence refunds from the board of education of said
city. But a teacher shall, if incapacitated to teach by reason of his
injuries, be entitled to the refund of his accumulated deductions in the
teachers' retirement system or in lieu thereof he may elect to receive
an annuity which shall be the actuarial equivalent of said accumulated
deductions. Any election or choice provided for herein may be made for
the teacher by one acting in the teacher's behalf if said teacher is
incapacitated to act for himself.
Group 20-a. For the purposes of this chapter, the work of any person
employed as a school aide by school authorities of any school district,
notwithstanding the definitions of the terms "employer," "employee" or
"employment" in subdivisions three, four and five of section two of this
chapter.
Group 20-b. For the purposes of this chapter, the work of any person
employed in a nonpedagogical capacity by school authorities within a
city having a population of one million or more, notwithstanding the
definitions of the terms "employer", "employee" or "employment" in
subdivisions three, four and five of section two of this chapter.
Group 21. For the purposes of this chapter, on and after January
first, nineteen hundred sixty-two, the work of a newspaper carrier as
defined in section thirty-two hundred twenty-eight of the education law
for an employer of one or more employees as defined in subdivisions
three and four of section two of this chapter.
Group 22. Employment as a teacher in a public school or place of
instruction maintained or operated by a board of education or trustees
of a school district, other than a school district located in a city
having a population of more than one million, notwithstanding the
definitions of the terms "employment," "employer" or "employee" in
subdivisions three, four and five of section two of this chapter.
Group 23. For the purposes of this chapter, the work of any person
employed to direct vehicular traffic at any street crossing or highway
intersection crossed by pupils in going to and returning from any school
in this state, whose chief duty primarily is to guard the life and
safety of such pupils.
Group 24. For the purposes of this chapter, employment of any person
appointed by the board of water supply of the city of New York pursuant
to the provisions of section K51-36.0 of the administrative code of the
city of New York, notwithstanding the definitions of the terms
"employment", "employer", or "employee", in subdivisions three, four and
five of section two of this chapter.
2. Occupational diseases. Compensation shall be payable for
disabilities sustained or death incurred by an employee resulting from
the following occupational diseases:
COLUMN ONE COLUMN TWO
Description of Diseases Description of Process
1. Anthrax. 1. Handling of wool, hair,
bristles, hides or skins.
2. Lead poisoning or its 2. Any process involving the
sequelae. use of or direct contact
with lead or its prepar-
ations or compounds.
3. Zinc poisoning or its 3. Any process involving the
sequelae. use of or direct contact
with zinc or its prepar-
ations or compounds or
alloys.
4. Mercury poisoning or 4. Any process involving the
its sequelae. use of or direct contact
with mercury or its
preparations or compounds.
5. Phosphorus poisoning or 5. Any process involving the
its sequelae. use of or direct contact
with phosphorous or its
preparations or compounds.
6. Arsenic poisoning or 6. Any process involving the use
its sequelae. of or direct contact with
arsenic or its preparations
or compounds.
7. Poisoning by wood 7. Any process involving the use
alcohol. of wood alcohol or any
preparation containing wood
alcohol.
8. Poisoning by benzol or 8. Any process involving the use
nitro-, hydro-, of or direct contact with
hydroxy- and amido- benzol or nitro-, hydro-,
derivatives of benzene hydroxy-, or amido-
(dinitro-benzol, anilin, derivatives of benzene or
and others), or its its preparations or compounds.
sequelae.
9. Poisoning by carbon 9. Any process involving
bisulphide or its the use of or direct contact
sequelae, or any with carbon bisulphide or
sulphide. its preparations or com-
pounds, or any sulphide.
10. Poisoning by nitrous 10. Any process in which
fumes or its sequelae. nitrous fumes are evolved.
11. Poisoning by nickel 11. Any process in which nickel
carbonyl or its carbonyl is evolved.
sequelae.
12. Dope poisoning 12. Any process involving the
(poisoning by use of or direct contact
tetrachlor-methane or with any substance used
any substance used as as or in conjunction with
or in conjunction with a solvent for acetate of
a solvent for acetate cellulose or nitro
of cellulose or nitro cellulose.
cellulose, or its
sequelae.
13. Poisoning by 13. Any process involving the
formaldehyde and its use of or direct contact
preparations. with formaldehyde and its
preparations.
14. Chrome ulceration 14. Any process involving the
or its sequelae or use of or direct contact
chrome poisoning. with chromic acid or
bychromate of ammonium,
potassium or sodium, or
their preparations.
15. Epitheliomatous cancer 15. Handling or use of tar,
or ulceration of the pitch, bitumen, mineral
skin or of the corneal oil, or paraffin or any
surface of the eye, compound, product or
due to tar, pitch, residue of any of these
bitumen, mineral oil, substances.
or paraffin, or any
compound, product or
residue of any of these
substances.
16. Glanders. 16. Care or handling of any
equine animal or the
carcass of any such animal.
17. Compressed air 17. Any process carried on
illness or its in compressed air.
sequelae.
18. Miners' diseases, 18. Any process involving
including only mining.
cellulitis, bursitis,
ankylostomiasis,
tenosynovitis and
nystagmus.
19. Cataract in 19. Processes in the manufacture
glassworkers. of glass involving exposure
to the glare of molten
glass.
20. Radium poisoning or 20. Any process involving the
disability due to use of or direct contact
radio-active pro- with radium or radio-active
perties of sub- substance or the use of or
stances or to direct exposure to Roentgen
Roentgen rays rays (X-rays) or ionizing
(X-rays) or exposure radiation.
to ionizing radiation.
21. Methyl chloride 21. Any process involving the
poisoning. use of or direct contact
with methyl chloride or its
preparations or compounds.
22. Carbon monoxide 22. Any process involving direct
poisoning. exposure to carbon monoxide
in buildings, sheds or
enclosed places.
23. Poisoning by sulphuric, 23. Any process involving the use
hydro-chloric or of or direct contact with
hydro-fluoric acid. sulphuric, hydrochloric or
hydrofluoric acids or
their fumes.
24. Respiratory, 24. Any process involving the
gastro-intestinal use of or direct contact
or physiological with petroleum or petroleum
nerve and eye dis- products and their fumes.
orders due to con-
tact with petroleum
products and their
fumes.
25. Disability arising 25. Any process involving
from blisters or continuous friction,
abrasions. rubbing or vibration
causing blisters or
abrasions.
26. Disability arising 26. Any process involving
from bursitis or continuous rubbing, pre-
synovitis. sure or vibration of the
parts affected.
27. Dermatitis 27. Any process involving the
(venenata). use of or direct contact
with acids, alkalies, acids
or oil, or with brick,
cement, lime, concrete or
mortar capable of causing
dermatitis (venenata).
28. Byssinosis. 28. Any process involving
exposure to raw cotton.
29. Silicosis or other 29. Any process involving ex-
dust diseases. posure to silica or other
harmful dust.
30. Any and all 30. Any and all employments
occupational diseases. enumerated in subdivision
one of section three of
this chapter.
Nothing in paragraph thirty of this subdivision shall be construed to
apply to any disability or death due to any disease described in
paragraph twenty-nine of this subdivision.
Special applicability; domestic partners; surviving domestic
partners; death benefits; funeral expenses; terrorist attacks of
September eleventh, two thousand one; construction. 1. Definition.
"Domestic partner" means a person at least eighteen years of age who:
(a) is dependent upon the employee for support as shown by either
unilateral dependence or mutual interdependence, as evidenced by a nexus
of factors including, but not limited to, common ownership of real or
personal property, common householding, children in common, signs of
intent to marry, shared budgeting, and the length of the personal
relationship with the employee or, if the employee is deceased, was so
dependent upon the employee immediately prior to the employee's death;
or
(b) has registered as the domestic partner of the employee with any
registry of domestic partnerships maintained by the employer of either
party, the state, or any county, city, town, or village, or, if the
employee is deceased, did so register prior to the employee's death.
(c) For the purposes of this section, the definition of domestic
partner made by this subdivision shall supplement or supersede any
inconsistent definition of such term by any other general, special, or
local law, ordinance, code, or charter so that no person qualifying as a
domestic partner, as defined in this subdivision, whether registered or
unregistered, shall, for the purposes of this section, be deemed not to
be a domestic partner.
(d) For the purposes of this section, the term "domestic partner"
shall include the term "surviving domestic partner".
Provided however, "domestic partner" shall not include any person who
is related by blood to the employee in a manner that would bar marriage
to the employee in New York state.
2. Death benefits. The domestic partner, at the time of the death, of
any employee shall, if such employee had no spouse at the time of his or
her death, be deemed to be the surviving spouse of such employee for the
purposes of any death benefit, including but not limited to funeral
expenses, to which a surviving spouse would be entitled upon the death
of such employee, and any and all such benefits shall be paid to such
domestic partner.
3. Applicability. The provisions of this section apply only to cases
in which the employee's death occurred as a result of the terrorist
attacks that occurred on September eleven, two thousand one.
4. Construction. (a) The definition of the term "domestic partner"
made by subdivision one of this section shall not be construed to be an
exclusive definition.
(b) The enactment of this section shall not be construed to divest any
court of any authority such court may otherwise have to adjudicate a
person a domestic partner on the basis of any criteria other than those
specified in subdivision one of this section, whether such person has or
has not registered as a domestic partner.
ARTICLE 2 Compensation
Definitions. For the purposes of this article, the following
terms shall mean:
1. "World Trade Center rescue" shall mean any activity involving an
employee of a private voluntary hospital that worked rescue operations
under contract with the city of New York under direction of the fire
department of the city of New York, conducted between September eleventh
and September fifteenth, two thousand one inclusive at or in the
vicinity of the World Trade Center site of the September eleventh, two
thousand one terrorist attack on the World Trade Center in the city of
New York, commonly referred to as "Ground Zero".
2. "Vicinity of the World Trade Center site" shall mean anywhere below
a line starting from the Hudson River and Canal Street; east on Canal
Street to Pike Street; south on Pike Street to the East River; and
extending to the lower tip of Manhattan.
Liability for compensation. 1. Every employer subject to this
chapter shall in accordance with this chapter, except as otherwise
provided in section twenty-five-a hereof, secure compensation to his
employees and pay or provide compensation for their disability or death
from injury arising out of and in the course of the employment without
regard to fault as a cause of the injury, except that there shall be no
liability for compensation under this chapter when the injury has been
solely occasioned by intoxication from alcohol or a controlled substance
of the injured employee while on duty; or by wilful intention of the
injured employee to bring about the injury or death of himself or
another; or where the injury was sustained in or caused by voluntary
participation in an off-duty athletic activity not constituting part of
the employee's work related duties unless the employer (a) requires the
employee to participate in such activity, (b) compensates the employee
for participating in such activity or (c) otherwise sponsors the
activity.
2. Notwithstanding any other provisions of this chapter, an injury
incurred by an individual currently employed as an emergency medical
technician or an advanced emergency medical technician who is certified
pursuant to section three thousand two of the public health law, while
voluntarily and without expectation of monetary compensation rendering
medical assistance at the scene of an accident shall be deemed to have
arisen out of and in the course of the employment with that emergency
medical technician or advanced emergency medical technician's current
employer.
3. (a) Notwithstanding any other provisions of this chapter, where a
public safety worker, including but not limited to a firefighter,
emergency medical technician, police officer, correction officer,
civilian employee of the department of corrections and community
supervision or other person employed by the state to work within a
correctional facility maintained by the department of corrections and
community supervision, driver and medical observer, in the course of
performing his or her duties, is exposed to the blood or other bodily
fluids of another individual or individuals, the executive officer of
the appropriate ambulance, fire or police district may authorize such
public safety worker to obtain the care and treatment, including
diagnosis, recommended medicine and other medical care needed to
ascertain whether such individual was exposed to or contracted any
communicable disease and such care and treatment shall be the
responsibility of the insurance carrier of the appropriate ambulance,
fire or police district or, if a public safety worker was not so exposed
in the course of performing his or her duties for such a district, then
such person shall be covered for the treatment provided for in this
subdivision by the carrier of his or her employer when such person is
acting in the scope of his or her employment. For the purpose of this
subdivision, the term "public safety worker" shall include persons who
act for payment or who act as volunteers in an organized group such as a
rescue squad, police department, correctional facility, ambulance corps,
fire department, or fire company.
(b) Where a police officer or firefighter subject to section thirty of
this article, or emergency medical technician, paramedic, or other
person certified to provide medical care in emergencies, or emergency
dispatcher files a claim for mental injury premised upon extraordinary
work-related stress incurred in a work-related emergency, the board may
not disallow the claim upon a factual finding that the stress was not
greater than that which usually occurs in the normal work environment.
(c) The board may not disallow a claim by a covered employee upon a
factual finding that the stress was not greater than that which usually
occurs in the normal work environment where a claim for post-traumatic
stress disorder (PTSD), acute stress disorder or major depressive
disorder resulting from work-related stress is filed upon submission of
medical evidence based on the criteria contained in the version of the
Diagnostic and Statistical Manual of Mental Disorders in effect on the
date of accident, or as otherwise adopted by the board, provided that
such adoption shall be no more stringent than the current or immediately
preceding version of the Diagnostic and Statistical Manual of Mental
Disorders. Such covered employee must demonstrate that such disorder
arose out of extraordinary work-related stress attributable to a
distinct work-related event or events directly related to the employment
and occurring during the performance of the employee's job duties.
(d) Nothing in paragraphs (b) and (c) of this subdivision shall apply
to a claim for mental injury due to a work-related physical injury.
4. Any person incarcerated upon conviction of a felony shall be deemed
ineligible for all benefits provided under this chapter. All those whose
benefits have ceased by operation of this section, may apply to the
board for benefits upon their release from custody pursuant to
regulation of the board.
Alternative remedy. 1. 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
representatives, 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
necessary to plead or prove freedom from contributory negligence nor may
the defendant plead as a defense that the injury was caused by the
negligence 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 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, exercise persons, and at the election of
the New York Jockey Injury Compensation Fund, Inc., with the approval of
the New York state gaming commission, employees of licensed trainers or
owners licensed under article two or four of the racing, pari-mutuel
wagering and breeding 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
indemnification 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
blindness, 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
association, 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
registered 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 executive law, that is a registered member of the New York black car
operators' 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 standing 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 fourteen-a of this article.
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
article, that is a registered member of such fund, and (ii) any
statutory penalty resulting from the failure to secure such payment.
2. Determination by the board shall not be given collateral estoppel
effect in any other action or proceeding arising out of the same
occurrence, other than the determination of the existence of an employer
employee relationship.
Compensation not allowed for first seven days. No compensation
shall be allowed for the first seven days of disability, except the
benefits provided for in section thirteen of this chapter, provided,
however, that in case the injury results in disability of more than
fourteen days, the compensation shall be allowed from the date of the
disability.
Treatment and care of injured employees. (a) The employer shall
promptly provide for an injured employee such medical, dental, surgical,
optometric or other attendance or treatment, nurse and hospital service,
medicine, optometric services, crutches, eye-glasses, false teeth,
artificial eyes, orthotics, prosthetic devices, functional assistive and
adaptive devices and apparatus for such period as the nature of the
injury or the process of recovery may require. The employer shall be
liable for the payment of the expenses of medical, dental, surgical,
optometric or other attendance or treatment, nurse and hospital service,
medicine, optometric services, crutches, eye-glasses, false teeth,
artificial eyes, orthotics, prosthetic devices, functional assistive and
adaptive devices and apparatus, as well as artificial members of the
body or other devices or appliances necessary in the first instance to
replace, support or relieve a portion or part of the body resulting from
and necessitated by the injury of an employee, for such period as the
nature of the injury or the process of recovery may require, and the
employer shall also be liable for replacements or repairs of such
artificial members of the body or such other devices, eye-glasses, false
teeth, artificial eyes, orthotics, prosthetic devices, functional
assistive and adaptive devices or appliances necessitated by ordinary
wear or loss or damage to a prosthesis, with or without bodily injury to
the employee. Damage to or loss of a prosthetic device shall be deemed
an injury except that no disability benefits shall be payable with
respect to such injury under section fifteen of this article. Such a
replacement or repair of artificial members of the body or such other
devices, eye-glasses, false teeth, artificial eyes, orthotics,
prosthetic devices, functional assistive and adaptive devices or
appliances or the providing of medical treatment and care as defined
herein shall not constitute the payment of compensation under section
twenty-five-a of this article. All fees and other charges for such
treatment and services shall be limited to such charges as prevail in
the same community for similar treatment of injured persons of a like
standard of living.
The chair shall prepare and establish a schedule for the state, or
schedules limited to defined localities, of charges and fees for such
medical treatment and care, and including all medical, dental, surgical,
optometric or other attendance or treatment, nurse and hospital service,
medicine, optometric services, crutches, eye-glasses, false teeth,
artificial eyes, orthotics, prosthetic devices, functional assistive and
adaptive devices and apparatus in accordance with and to be subject to
change pursuant to rules promulgated by the chair. Before preparing such
schedule for the state or schedules for limited localities the chair
shall request the president of the medical society of the state of New
York and the president of the New York state osteopathic medical society
to submit to him or her a report on the amount of remuneration deemed by
such society to be fair and adequate for the types of medical care to be
rendered under this chapter, but consideration shall be given to the
view of other interested parties. In the case of physical therapy fees
schedules the chair shall request the president of a recognized
professional association representing physical therapists in the state
of New York to submit to him or her a report on the amount of
remuneration deemed by such association to be fair and reasonable for
the type of physical therapy services rendered under this chapter, but
consideration shall be given to the views of other interested parties.
The chair shall also prepare and establish a schedule for the state, or
schedules limited to defined localities, of charges and fees for
outpatient hospital services not covered under the medical fee schedule
previously referred to in this subdivision, to be determined in
accordance with and to be subject to change pursuant to rules
promulgated by the chair. Before preparing such schedule for the state
or schedules for limited localities the chair shall request the
president of the hospital association of New York state to submit to him
or her a report on the amount of remuneration deemed by such association
to be fair and adequate for the types of hospital outpatient care to be
rendered under this chapter, but consideration shall be given to the
views of other interested parties. In the case of occupational therapy
fees schedules the chair shall request the president of a recognized
professional association representing occupational therapists in the
state of New York to submit to him or her a report on the amount of
remuneration deemed by such association to be fair and reasonable for
the type of occupational therapy services rendered under this chapter,
but consideration shall be given to the views of other interested
parties. The amounts payable by the employer for such treatment and
services shall be the fees and charges established by such schedule.
Nothing in this schedule, however, shall prevent voluntary payment of
amounts higher or lower than the fees and charges fixed therein, but no
physician rendering medical treatment or care, and no physical or
occupational therapist rendering their respective physical or
occupational therapy services may receive payment in any higher amount
unless such increased amount has been authorized by the employer, or by
decision as provided in section thirteen-g of this article. Nothing in
this section shall be construed as preventing the employment of a duly
authorized physician on a salary basis by an authorized compensation
medical bureau or laboratory.
(b) In the case of persons, injured outside of this state, but
entitled to compensation or benefits under this chapter, the provisions
as to selection of authorized physicians shall be inapplicable. In such
cases the employer shall promptly provide all necessary medical
treatment and care but if the employer fail to provide the same, after
request by the injured employee such injured employee may do so at the
expense of the employer. The employee shall not be entitled to recover
any amount expended by him for such treatment or services unless he
shall have requested the employer to furnish the same and the employer
shall have refused or neglected to do so, or unless the nature of the
injury required such treatment and services and the employer or his
superintendent or foreman having knowledge of such injury shall have
neglected to provide the same; nor shall any claim for medical or
surgical treatment be valid and enforceable, as against such employer,
unless within twenty days following the first treatment, the physician
giving such treatment, furnish to the employer and the chairman a report
of such injury and treatment, on a form prescribed by the chairman. The
board may, however, by the unanimous vote of a panel of not less than
three members qualified to act, excuse the failure to give such notice
within twenty days when it finds it to be in the interest of justice to
do so, and may, subject to the limitations contained in section
twenty-eight of this chapter, make an award for the reasonable value of
such medical or surgical treatment. All fees and other charges for such
treatment and services, whether furnished by the employer or otherwise,
shall be subject to regulation by the board as provided in section
twenty-four of this chapter, and shall be limited to such charges as
prevail in the same community for similar treatment of injured persons
of a like standard of living.
(c) The liability of an employer for medical treatment as herein
provided shall not be affected by the fact that his employee was injured
through the fault or negligence of a third party, not in the same
employ. The employer shall, however, have an additional cause of action
against such third party to recover any amounts paid by him for such
medical treatment, in like manner as provided in section twenty-nine of
this chapter.
(d) (1) In the event that an insurer or health benefits plan makes
payments for medical and/or hospital services for or on behalf of an
injured employee they shall be entitled to be reimbursed for such
payments by the carrier or employer within the limits of the medical and
hospital fee schedules if the board determines that the claim is
compensable. For the purposes of this section, an insurer or health
benefits plan includes a medical expense indemnity corporation, a health
or hospital service corporation, a commercial insurance company licensed
to write accident and health insurance in the state of New York, a
health maintenance organization operating in accordance with article
forty-three of the insurance law or article forty-four of the public
health law, or a self-insured or self-funded health care benefits plan
operated by, or on behalf of, any business, municipality or other entity
(including an employee welfare fund as defined in article forty-four of
the insurance law or any other union trust fund or union health benefits
plan). Notwithstanding any other provision of law, in no event shall the
carrier or employer be required to reimburse the insurer or health
benefits plan in an amount greater than the amount paid for medical and
hospital services for or on behalf of the injured employer by such
corporation or company; provided, however, if the carrier or employer
does not reimburse the insurer or health benefits plan within thirty
days after the board determines that the claim is compensable, the
carrier or employer shall reimburse the insurer or health benefits plan
at the amount the carrier or employer would be obligated to reimburse
the hospital or other provider of medical services if the carrier or
employer made payment directly to the provider of medical and/or
hospital services pursuant to this chapter (or, in the case of inpatient
hospital services, pursuant to paragraphs (b) and (b-1) of subdivision
one of section twenty-eight hundred seven-c of the public health law).
Upon reimbursement to the insurer or health benefits plan pursuant to
this subdivision, the carrier or employer shall be relieved of liability
for the medical and/or hospital services for which payment has been made
by the insurer or health benefits plan.
(2) An insurer or health benefits plan entitled to reimbursement
pursuant to paragraph one of this subdivision shall receive copies of
the hearing and decision notices and shall develop with the carrier or
employer its own mechanisms and standard operating procedures for
payment of undisputed claims for reimbursement. In cases of disputed
claims for reimbursement that are filed with the board within three
years of the date of payment for services rendered by the health care
provider or within ninety days of the effective date of a chapter of the
laws of nineteen hundred ninety-two, entitled "AN ACT to amend the
workers' compensation law, in relation to reimbursement of insurers and
health benefit plans", whichever is later, the sole remedy of the
insurer or health benefit plan to recover on a claim arising pursuant to
this subdivision shall be the submission of the controversy to mandatory
arbitration or other alternative dispute resolution procedures as
defined by rules and regulations promulgated by the chair in accordance
with subdivision (h) of this section.
(e) The board, on its own motion, or a referee, upon the
recommendation of the compensation medical director for the board,
hearing a claim for compensation may require examination of any
claimant, or of the testimony, reports and exhibits, or both, by a
physician especially qualified with respect to the diagnosis or
treatment of the disability for which compensation is claimed; and may
require a report from such physician on the diagnosis, the causal
relationship between the alleged injury and subsequent disability or
death, proper treatment, and the extent of the disability of such
claimant. The employer or his or her insurance carrier shall pay for
such examination in an amount to be directed by the chairman.
The chairman may in his discretion designate physicians of outstanding
qualifications in such fields of medicine as he deems essential in order
to ascertain the diagnosis, the causal relationship between the alleged
injury and subsequent disability, the type of medical care and operative
procedure requisite in particular cases where such matters are not
readily determinable by the regularly employed medical examiners of the
board. Each of such physicians shall have had, prior to his or her
designation, at least five years of practice in the field with respect
to which he or she is designated, and shall receive a fee for each case,
or shall be paid on a per diem basis, as determined by the chairman.
Claimants maybe required to submit to examination by such physicians in
the manner hereinbefore specified. The contents of reports of designated
physicians when introduced in evidence shall constitute prima facie
evidence of fact as to the matter contained therein, and the makers of
such reports shall be subject to examination upon demand and shall be
paid an additional fee, as determined by the chairman, for testifying in
each case.
(f) Copies of medical reports of claimant's attending physician or
medical consultant, made pursuant to this chapter subsequent to the date
of the request provided for in this subdivision and antedating not more
than thirty days, shall be transmitted by the physician or consultant to
the claimant's licensed representative or attorney representing the
claimant before the board upon his written request therefor accompanied
by a notice of his retainer and consent to such transmittal signed by
the claimant.
(g) Every hospital operating in the state shall, within twenty days of
receiving a written request by a claimant, claimant's representative,
employer, carrier or special fund created under this chapter, provide to
such claimant, claimant's representative, employer, carrier or special
fund for use in board proceedings the medical records of an employee who
has received treatment in such hospital and who is claiming benefits
under this chapter. Each hospital shall designate at least one officer
or employee who shall be responsible for provision of such records on
written request, and to whom the board, claimant, claimant's, employer,
carrier representative or special fund may address informal inquiries
regarding provision of such records.
No hospital shall be required to produce the records of any claimant
pursuant to this section without receiving the cost of copying such
records as determined by the chair. Such cost shall be paid by the
requesting party except that the employer or carrier or special fund
shall reimburse a claimant or claimant's representative the cost of an
initial set of such records where the request is made by a claimant or
claimant's representative. Should the hospital not be able to provide
the requested records within twenty days, they shall notify in writing
the party requesting the records of the reason why the records were not
provided and the date on which they will be provided. Such date shall be
within a reasonable period of time, but shall not exceed thirty days.
Failure to either provide the records within twenty days or to provide a
reason why the records have not been provided shall subject the hospital
to a fine of two hundred dollars which shall be imposed by the chair
payable to the board upon finding that this subdivision has not been
complied with. No hospital shall be required to produce the records of
any claimant without receiving its customary fees or charges for
reproduction of such records.
(h) (1) The chair shall require the performance of computer searches
to identify injured employees who, with respect to the same injury or
illness, have filed claims under the provisions of this chapter and made
claims to, or on their behalf with, a payor of medical payments eligible
for reimbursement pursuant to this section. Such searches shall be done
at least quarterly upon request of payors and upon submission to the
board of computer tapes containing the information the chair shall need
to identify injured employees who file dual claims under this section.
At least quarterly, the chair shall identify injured employees who have
filed dual claims by social security number and workers' compensation
board number and shall notify the payor of such results.
(2) Such payor shall use the information of dual filings solely for
the purpose of reimbursement from the carrier or employer. The chair,
upon a finding that such entity has used the information for purposes
other than reimbursement from the carrier or employer, may, after
hearing, impose a penalty of not more than ten thousand dollars and may
prohibit such entity from receiving information under this subdivision
for up to three years.
(3) The chair shall adopt rules and regulations to carry out the
provisions of this section, which rules and regulations shall provide
for alternative dispute resolution procedures for settlement of disputed
claims for reimbursement under subdivision (d) of this section including
but not limited to referral and submission of disputed claims to
mandatory arbitration with private arbitration associations. Such rules
and regulations may provide for a reasonable fee to be charged to payors
for computer searches. Claims for computer searches submitted to the
board prior to March thirty-first, nineteen hundred ninety-two, may be
submitted with a payment date on or after April first, nineteen hundred
eighty-eight. Claims for reimbursement submitted after March
thirty-first, nineteen hundred ninety-two, shall have a payment date
that is no later than three years prior to the date of submission of the
claim for matching purposes to the board. If disputed, these claims
shall be resolved through the dispute resolution procedures set forth in
this section. Upon resolution of the reimbursement dispute in accordance
with this section, the amount paid to the prevailing party shall be
increased by the amount of any fee paid to the arbitrator or incurred by
reason of any other alternate dispute resolution procedure.
(i) (1) When a claimant or pharmacy submits a claim to the employer or
its carrier for payment of prescribed medicine or for reimbursement of
the cost of prescribed medicine which the employer is required to
provide under this section, the employer or carrier shall pay the amount
prescribed by the fee schedule adopted under section thirteen-o of this
article, or if the prescribed medicine is not included on the current
fee schedule, the usual and customary charges for such prescribed
medicine, within forty-five days of receipt of the claim, unless the
liability of the employer or carrier on the claim for which the claimant
seeks payment or reimbursement of payment for the prescribed medicine is
not established, or the prescribed medicine is not for a causally
related condition.
(2) Where the liability of the employer or carrier on the claim for
which the claimant seeks payment or reimbursement of payment for the
prescribed medicine or reimbursement for payment of prescribed medicine
is not established, or is not for a causally related condition, the
employer or carrier shall pay any undisputed portion of the claim in
accordance with this section and notify the claimant or pharmacy, as
appropriate, in writing within forty-five days of receipt of the claim:
(i) that the claim is not being paid and explaining the reasons for
nonpayment; or
(ii) to request all additional information reasonably needed to
determine the employer's or carrier's liability for the claim. Upon
receipt of the information requested in this subparagraph, the employer
or carrier shall comply with paragraph one of this subdivision.
(3) Each claim for payment of prescribed medicine or reimbursement for
payment of prescribed medicine that is processed in violation of this
section shall constitute a separate violation. In addition to the other
penalties provided in this chapter, any employer or carrier that fails
to reimburse the claimant or pay the pharmacy, as appropriate and as
required in this section shall be obligated to pay to the claimant or
pharmacy the amount prescribed on the fee schedule adopted under section
thirteen-o of this article, or if the prescribed medicine is not
included on the current fee schedule, the usual and customary charges
for the prescribed medicine plus simple interest at the rate set forth
in section five thousand four of the civil practice law and rules.
(4) Nothing in this subdivision shall prohibit employers or carriers
from agreeing to or arranging for direct billing by the pharmacy to the
employer or carrier for the cost of prescribed medicine, in order for
claimants to more promptly receive prescribed medicine for which
employers and carriers are liable under this section.
(5) Notwithstanding any other provision of this chapter, if an
employer or carrier has contracted with a pharmacy to provide prescribed
medicine to claimants, then such employer or carrier may require
claimants to obtain all prescribed medicines from the pharmacy with
which it has contracted, except if a medical emergency occurs and it
would not be reasonably possible to obtain immediately required
prescribed medicine from the pharmacy with which the employer or carrier
has a contract. An employer or carrier that requires claimants to obtain
prescribed medicines from a pharmacy with which it has a contract must
notify claimants of the pharmacy or pharmacies with which it has a
contract, the locations and addresses of the pharmacy or pharmacies, if
applicable, how to initially fill and refill prescriptions through the
mail, internet, telephone or other means, and any other required
information that must be supplied to the pharmacy or pharmacies. If the
pharmacy or pharmacies with which the employer or carrier contracts does
not offer mail order service and does not have a physical location
within a reasonable distance from the claimant, as defined by regulation
of the board, the claimant may obtain prescribed medicines at the
pharmacy or pharmacies of his or her choice and the employer or carrier
will be liable for such charges in accordance with the fee schedule
prescribed in section thirteen-o of this chapter.
* § 13-a. Selection of authorized physician by employee. (1) An
injured employee may, when care is required, select to treat him or her
any physician authorized by the chair to render medical care, as
hereafter provided. If for any reason during the period when medical
treatment and care is required, the employee wishes to transfer his or
her treatment and care to another authorized physician, he or she may do
so, in accordance with rules prescribed by the chair. In such instance
the remuneration of the physician whose services are being dispensed
with shall be limited to the value of treatment rendered at fees as
established in the schedule for his or her location, unless payment in
higher amounts has been approved as authorized in section thirteen,
paragraph a. If a claimant shall receive treatment in any hospital or
other institution operated in whole or in part by the state of New York,
the employer shall be liable for food, clothing and maintenance
furnished by the hospital or other institution to such employee. If the
employee is unable due to the nature of the injury to select such
authorized physician and the emergency nature of the injury requires
immediate medical treatment and care, or if he or she does not desire to
select a physician, and in writing so advises the employer, the employer
shall promptly provide him or her with the necessary medical care,
provided however, that nothing herein contained shall operate to prevent
such employee, when subsequently able to do so, from selecting for
continuance of any medical treatment or care required, any physician
authorized by the chair to render medical care as hereinafter provided.
(2) The chairman shall prescribe the form of a notice informing
employees of their privilege under this chapter, and such notice shall
be posted and maintained by the employer in a conspicuous place or
places in and about his place or places of business.
(3) The employer shall have the right to transfer the care of an
injured employee from the attending physician, whether chosen originally
by the employee or by the employer, to another authorized physician (1)
if the interest of the injured employee necessitates the transfer or (2)
if the physician has not been authorized to treat injured employees
under this act or (3) if he has not been authorized under this act to
treat the particular injury or condition as provided by section
thirteen-b (2). An authorized physician from whom the case has been
transferred shall have the right of appeal to an arbitration committee
as provided in subdivision two of section thirteen-g and if said
arbitration committee finds that the transfer was not authorized by this
section, said employer shall pay to the physician a sum equal to the
total fee earned by the physician to whom the care of the injured
employee has been transferred, or such proportion of said fee as the
arbitration committee shall deem adequate.
(4) (a) No claim for medical or surgical treatment shall be valid and
enforceable, as against such employer, or employee, unless within
forty-eight hours following the first treatment the physician giving
such treatment furnishes to the employer and directly to the chair a
preliminary notice of such injury and treatment, within fifteen days
thereafter a more complete report and subsequent thereto progress
reports if requested in writing by the chair, board, employer or
insurance carrier at intervals of not less than three weeks apart or at
less frequent intervals if requested on forms prescribed by the chair.
The board may excuse failure to give such notices within the designated
periods when it finds it to be in the interest of justice to do so.
(b) Upon receipt of the notice provided for by paragraph (a) of this
subdivision, the employer, the carrier, and the claimant each shall be
entitled to have the claimant examined by a physician authorized by the
chair in accordance with sections thirteen-b and one hundred
thirty-seven of this chapter, at a medical facility convenient to the
claimant and in the presence of the claimant's physician, and refusal by
the claimant to submit to such independent medical examination at such
time or times as may reasonably be necessary in the opinion of the
board, shall bar the claimant from recovering compensation for any
period during which he or she has refused to submit to such examination.
No hospital shall be required to produce the records of any claimant
without receiving its customary fees or charges for reproduction of such
records.
(c) Where it would place an unreasonable burden upon the employer or
carrier to arrange for, or for the claimant to attend, an independent
medical examination by an authorized physician, the employer or carrier
shall arrange for such examination to be performed by a qualified
physician in a medical facility convenient to the claimant.
(d) The independent medical examiner shall provide such reports and
shall submit to investigation as required by the chair.
(e) In order to qualify as admissible medical evidence, for purposes
of adjudicating any claim under this chapter, any report submitted to
the board by an independent medical examiner licensed by the state of
New York shall include the following:
(i) a signed statement certifying that the report is a full and
truthful representation of the independent medical examiner's
professional opinion with respect to the claimant's condition:
(ii) such examiner's board issued authorization number;
(iii) the name of the individual or entity requesting the examination;
(iv) if applicable, the registration number as required by section
thirteen-n of this article; and
(v) such other information as the chair may require by regulation.
Any report by an independent medical examiner who is not authorized,
and who performs an independent medical examination in accordance with
paragraph (c) of this subdivision, which is to be used as medical
evidence under this chapter, shall include in the report such
information as the chair may require by regulation.
(5) No claim for specialist consultations, surgical operations,
physiotherapeutic or occupational therapy procedures, x-ray examinations
or special diagnostic laboratory tests costing more than one thousand
dollars shall be valid and enforceable, as against such employer, unless
such special services shall have been authorized by the employer or by
the board, or unless such authorization has been unreasonably withheld,
or withheld for a period of more than thirty calendar days from receipt
of a request for authorization, or unless such special services are
required in an emergency, provided, however, that the basis for a denial
of such authorization by the employer must be based on a conflicting
second opinion rendered by a physician authorized by the board. The
board, with the approval of the superintendent of financial services,
shall issue and maintain a list of pre-authorized procedures under this
section. Such list of pre-authorized procedures shall be issued and
maintained for the purpose of expediting authorization of treatment of
injured workers. Such list of pre-authorized procedures shall not
prohibit varied treatment when the treating provider demonstrates the
appropriateness and medical necessity of such treatment.
(6) (a) Any interference by any person with the selection by an
injured employee of an authorized physician to treat him, except when
the selection is made pursuant to article ten-A of this chapter, and the
improper influencing or attempt by any person improperly to influence
the medical opinion of any physician who has treated or examined an
injured employee, shall be a misdemeanor; provided, however, that it
shall not constitute interference or improper influence if, in the
presence of such injured employee's physician, an employer, his carrier
or agent should recommend or provide information concerning
rehabilitation services or the availability thereof to an injured
employee or his family.
(b) Except as otherwise permitted by law, an employer, carrier, or
third-party administrator shall not interfere or attempt to interfere
with the selection by an injured employee of, or treatment by, an
authorized medical provider, including by directing or attempting to
direct that the injured employee seek treatment from a specific provider
or type of provider selected by the employer, carrier, or third-party
administrator. It shall not constitute improper interference under this
paragraph if the direction or attempt to direct the injured employee to
receive treatment from a specific provider or type of provider
originates from the authorized medical provider while in the course of
providing treatment to the injured employee.
(i) Notwithstanding any other provision in this chapter, the chair
shall by regulation establish a performance standard concerning the
subject of any penalty imposed under this paragraph against an employer,
carrier or third-party administrator. The performance standard
established by the chair shall be used to measure compliance with this
paragraph by employers, carriers and third-party administrators. The
chair shall apply the performance standard based on multiple factors,
including but not limited to, findings of improper interference
submitted as complaints to the board's monitoring unit, unreasonable
objections to medical care, unwarranted objections to variances, medical
billing disputes, case delays brought about by employers, carriers and
third-party administrators, and the unreasonable denial of medical care.
(ii) Upon validating an allegation that the employer, carrier or
third-party administrator has failed to meet the promulgated performance
standard, a penalty shall be assessed by the board upon notice to the
employer, carrier or third-party administrator. The board shall impose
such penalty against the carrier, employer or third-party administrator
in the amount of fifty dollars per violation identified in subparagraph
(i) of this paragraph. The penalties for violations identified in
subparagraph (i) of this paragraph, may be aggregated into a single
penalty upon a finding that an employer, carrier or third-party
administrator has interfered with an injured employee's necessary
medical treatment and care. Such aggregate penalty or assessment shall
be based upon the number of violations as multiplied against the
applicable penalty or assessment, but may be negotiated by the chair's
designee in full satisfaction of the penalty or assessment. Any
aggregate penalty or assessment issued under this paragraph shall be
issued administratively, and the chair shall, by regulation, specify the
method of review or redetermination, and the presentment of evidence and
objections shall occur solely upon the documentation. Any final
determination shall be subject to review under section twenty-three of
this article but penalties may not be subject to a stay. A final
determination that an employer, carrier or third-party administrator has
engaged in a pattern of interference with an injured worker's access to
medically necessary medical care shall result in the imposition of an
aggregate penalty and publication of notice of such finding on the
board's web page.
(7)(a) Notwithstanding any other provision of this chapter to the
contrary, any insurance carrier authorized to transact the business of
workers' compensation insurance in this state, self-insurer or the state
insurance fund may contract with a network or networks, legally and
properly organized, to perform diagnostic tests, x-ray examinations,
magnetic resonance imaging, or other radiological examinations or tests
of claimants and may require claimant to obtain or undergo such
diagnostic test, x-ray examinations, magnetic resonance imaging or other
radiological examinations or tests with a provider or at a facility that
is affiliated with the network or networks with which the carrier
contracts, except if a medical emergency occurs requiring an immediate
diagnostic test, x-ray examination, magnetic resonance imaging or other
radiological examination or test or if the network with which the
insurance carrier, self-insurer or the state insurance fund contracts
does not have a provider or facility able to perform the examination or
test within a reasonable distance from the claimant's residence or place
of employment, as defined by regulation of the board.
(b) Any insurance carrier, self-insurer or the state insurance fund
which requires claimants to obtain or undergo diagnostic tests, x-ray
examinations, magnetic resonance imaging or other radiological
examinations or tests with a provider or at a facility affiliated with a
network or networks with which it contracts, must notify the claimant of
the name and contact information for the network or networks at the same
time the written statement of the claimant's rights as required by
subdivision two of section one hundred ten of this chapter or
immediately after imposing such requirement if the time period within
which the written statement of the claimant's rights as required by
subdivision two of section one hundred ten of this chapter has expired.
(c) At the time a request for authorization for special diagnostic
tests, x-ray examinations, magnetic resonance imaging or other
radiological examinations or tests costing more than one thousand
dollars as required by subdivision five of this section is approved, the
insurance carrier, self-insurer or state insurance fund, or if so
delegated the network with which the insurance carrier, self-insurer or
state insurance fund has contracted, shall notify the physician
requesting authorization of the requirement that the claimant obtain or
undergo the special diagnostic test, x-ray examination, magnetic
resonance imaging or other radiological examination or test with a
provider or at a facility affiliated with the network or networks with
which it has contracted, the contact information for the network and a
list of the providers and facilities within the claimant's geographic
location, as defined by regulation of the board. The claimant, in
consultation with the provider who requested the special diagnostic
test, x-ray examination, magnetic resonance imaging or other
radiological test or exam, will determine the provider or facility from
within the network which will perform such diagnostic test, x-ray
examination, magnetic resonance imaging or other radiological
examination or test.
(d) The results of the special diagnostic test, x-ray examination,
magnetic resonance imaging or other radiological test or exam must be
sent to the physician who requested the test or exam immediately upon
completion of the report detailing the results.
* NB Effective until January 1, 2028
* § 13-a. Selection of authorized provider by employee. (1) An injured
employee may, when care is required, select to treat with any provider
authorized by the chair to render medical care or treatment, as
hereafter provided. If for any reason during the period when medical
care or treatment is required, the employee wishes to transfer their
medical care or treatment to another authorized provider, they may do
so, in accordance with rules prescribed by the chair. In such instance
the remuneration of the provider whose services are being dispensed with
shall be limited to the value of treatment rendered at fees as
established in the schedule for their location, unless payment in higher
amounts has been approved as authorized in subdivision a of section
thirteen of this article. If a claimant shall receive treatment in any
hospital or other institution operated in whole or in part by the state
of New York, the employer shall be liable for food, clothing and
maintenance furnished by the hospital or other institution to such
employee. If the employee is unable due to the nature of the injury to
select such authorized provider and the emergency nature of the injury
requires immediate medical treatment and care, or if they do not desire
to select a provider, and in writing so advises the employer, the
employer shall promptly provide the employee with the necessary medical
care or treatment, provided however, that nothing herein contained shall
operate to prevent such employee, when subsequently able to do so, from
selecting for continuance of any medical care or treatment required, any
provider authorized by the chair to render medical care or treatment as
hereinafter provided.
(2) The chair shall prescribe the form of a notice informing employees
of their privilege under this chapter, and such notice shall be posted
and maintained by the employer in a conspicuous place or places in and
about their place or places of business.
(3) The employer shall have the right to transfer the care of an
injured employee from the attending physician, whether chosen originally
by the employee or by the employer, to another authorized physician (1)
if the interest of the injured employee necessitates the transfer or (2)
if the physician has not been authorized to treat injured employees
under this act or (3) if the physician has not been authorized under
this act to treat the particular injury or condition as provided by
section thirteen-b (2). An authorized physician from whom the case has
been transferred shall have the right of appeal to an arbitration
committee as provided in subdivision two of section thirteen-g of this
article and if said arbitration committee finds that the transfer was
not authorized by this section, said employer shall pay to the physician
a sum equal to the total fee earned by the physician to whom the care of
the injured employee has been transferred, or such proportion of said
fee as the arbitration committee shall deem adequate.
(4) (a) No claim for medical or surgical treatment shall be valid and
enforceable, as against such employer, or employee, unless within
forty-eight hours following the first treatment the provider giving such
treatment furnishes to the employer and directly to the chair a
preliminary notice of such injury and treatment, within fifteen days
thereafter a more complete report and subsequent thereto progress
reports if requested in writing by the chair, board, employer or
insurance carrier at intervals of not less than three weeks apart or at
less frequent intervals if requested on forms prescribed by the chair.
The board may excuse failure to give such notices within the designated
periods when it finds it to be in the interest of justice to do so. A
provider's reports or records shall be considered as evidence in support
of a claim notwithstanding the provider's compliance with the foregoing
time frames.
(b) Upon receipt of the notice provided for by paragraph (a) of this
subdivision, the employer, the carrier, and the claimant each shall be
entitled to have the claimant examined by a provider authorized by the
chair to perform independent medical examinations in accordance with
sections thirteen-b and one hundred thirty-seven of this chapter, at a
medical facility convenient to the claimant and in the presence of the
claimant's provider, and refusal by the claimant to submit to such
independent medical examination at such time or times as may reasonably
be necessary in the opinion of the board, shall bar the claimant from
recovering compensation for any period during which they have refused to
submit to such examination. No hospital shall be required to produce the
records of any claimant without receiving its customary fees or charges
for reproduction of such records.
(c) Where it would place an unreasonable burden upon the employer or
carrier to arrange for, or for the claimant to attend, an independent
medical examination by an authorized provider, the employer or carrier
shall arrange for such examination to be performed by a qualified
provider in a medical facility convenient to the claimant.
(d) The independent medical examiner shall provide such reports and
shall submit to investigation as required by the chair.
(e) In order to qualify as admissible medical evidence, for purposes
of adjudicating any claim under this chapter, any report submitted to
the board by an independent medical examiner licensed by the state of
New York shall include the following:
(i) a signed statement certifying that the report is a full and
truthful representation of the independent medical examiner's
professional opinion with respect to the claimant's condition:
(ii) such examiner's board issued authorization number;
(iii) the name of the individual or entity requesting the examination;
(iv) if applicable, the registration number as required by section
thirteen-n of this article; and
(v) such other information as the chair may require by regulation.
Any report by an independent medical examiner who is not authorized,
and who performs an independent medical examination in accordance with
paragraph (c) of this subdivision, which is to be used as medical
evidence under this chapter, shall include in the report such
information as the chair may require by regulation.
(5) No claim for specialist consultations, surgical operations,
physiotherapeutic or occupational therapy procedures, x-ray examinations
or special diagnostic laboratory tests costing more than one thousand
five hundred dollars shall be valid and enforceable, as against such
employer, unless such special services shall have been authorized by the
employer or by the board, or unless such authorization has been
unreasonably withheld, or withheld for a period of more than thirty
calendar days from receipt of a request for authorization, or unless
such special services are required in an emergency, provided, however,
that the basis for a denial of such authorization by the employer must
be based on a conflicting second opinion rendered by a physician
authorized by the board. The board, with the approval of the
superintendent of financial services, shall issue and maintain a list of
pre-authorized procedures under this section. Such list of
pre-authorized procedures shall be issued and maintained for the purpose
of expediting authorization of treatment of injured workers. Such list
of pre-authorized procedures shall not prohibit varied treatment when
the treating provider demonstrates the appropriateness and medical
necessity of such treatment.
(6) (a) Any interference by any person with the selection by an
injured employee of an authorized provider to treat such employee,
except when the selection is made pursuant to article ten-A of this
chapter, and the improper influencing or attempt by any person
improperly to influence the medical opinion of any provider who has
treated or examined an injured employee, shall be a misdemeanor;
provided, however, that it shall not constitute interference or improper
influence if, in the presence of such injured employee's provider, an
employer, carrier or agent should recommend or provide information
concerning rehabilitation services or the availability thereof to an
injured employee or the employee's family. It shall not be presumed that
a claimant's attorney or representative's communication with the injured
employee's treating provider was an attempt to improperly influence the
treating provider. The mere fact that a claimant's attorney or
representative and their treating provider have communicated shall not
support a finding of improper influence. The board may diminish or
preclude the opinion of a treating provider based on improper influence
only upon a determination that, due to the interference, the opinion
will not help the board understand the evidence or determine a fact in
issue.
(b) Except as otherwise permitted by law, an employer, carrier, or
third-party administrator shall not interfere or attempt to interfere
with the selection by an injured employee of, or treatment by, an
authorized provider, including by directing or attempting to direct that
the injured employee seek treatment from a specific provider or type of
provider selected by the employer, carrier, or third-party
administrator. It shall not constitute improper interference under this
paragraph if the direction or attempt to direct the injured employee to
receive treatment from a specific provider or type of provider
originates from the employee's authorized provider while in the course
of providing treatment to the injured employee.
(i) Notwithstanding any other provision in this chapter, the chair
shall by regulation establish a performance standard concerning the
subject of any penalty imposed under this paragraph against an employer,
carrier or third-party administrator. The performance standard
established by the chair shall be used to measure compliance with this
paragraph by employers, carriers and third-party administrators. The
chair shall apply the performance standard based on multiple factors,
including but not limited to, findings of improper interference
submitted as complaints to the board's monitoring unit, unreasonable
objections to medical care or treatment, unwarranted objections to
variances, medical billing disputes, case delays brought about by
employers, carriers and third-party administrators, and the unreasonable
denial of medical care or treatment.
(ii) Upon validating an allegation that the employer, carrier or
third-party administrator has failed to meet the promulgated performance
standard, a penalty shall be assessed by the board upon notice to the
employer, carrier or third-party administrator. The board shall impose
such penalty against the carrier, employer or third-party administrator
in the amount of fifty dollars per violation identified in subparagraph
(i) of this paragraph. The penalties for violations identified in
subparagraph (i) of this paragraph, may be aggregated into a single
penalty upon a finding that an employer, carrier or third-party
administrator has interfered with an injured employee's necessary
medical care or treatment. Such aggregate penalty or assessment shall be
based upon the number of violations as multiplied against the applicable
penalty or assessment, but may be negotiated by the chair's designee in
full satisfaction of the penalty or assessment. Any aggregate penalty or
assessment issued under this paragraph shall be issued administratively,
and the chair shall, by regulation, specify the method of review or
redetermination, and the presentment of evidence and objections shall
occur solely upon the documentation. Any final determination shall be
subject to review under section twenty-three of this article but
penalties may not be subject to a stay. A final determination that an
employer, carrier or third-party administrator has engaged in a pattern
of interference with an injured worker's access to medically necessary
medical care or treatment shall result in the imposition of an aggregate
penalty and publication of notice of such finding on the board's web
page.
(7)(a) Notwithstanding any other provision of this chapter to the
contrary, any insurance carrier authorized to transact the business of
workers' compensation insurance in this state, self-insurer or the state
insurance fund may contract with a network or networks, legally and
properly organized, to perform diagnostic tests, x-ray examinations,
magnetic resonance imaging, or other radiological examinations or tests
of claimants and may require claimant to obtain or undergo such
diagnostic test, x-ray examinations, magnetic resonance imaging or other
radiological examinations or tests with a provider or at a facility that
is affiliated with the network or networks with which the carrier
contracts, except if a medical emergency occurs requiring an immediate
diagnostic test, x-ray examination, magnetic resonance imaging or other
radiological examination or test or if the network with which the
insurance carrier, self-insurer or the state insurance fund contracts
does not have a provider or facility able to perform the examination or
test within a reasonable distance from the claimant's residence or place
of employment, as defined by regulation of the board.
(b) Any insurance carrier, self-insurer or the state insurance fund
which requires claimants to obtain or undergo diagnostic tests, x-ray
examinations, magnetic resonance imaging or other radiological
examinations or tests with a provider or at a facility affiliated with a
network or networks with which it contracts, must notify the claimant of
the name and contact information for the network or networks at the same
time the written statement of the claimant's rights as required by
subdivision two of section one hundred ten of this chapter or
immediately after imposing such requirement if the time period within
which the written statement of the claimant's rights as required by
subdivision two of section one hundred ten of this chapter has expired.
(c) At the time a request for authorization for special diagnostic
tests, x-ray examinations, magnetic resonance imaging or other
radiological examinations or tests costing more than one thousand five
hundred dollars as required by subdivision five of this section is
approved, the insurance carrier, self-insurer or state insurance fund,
or if so delegated the network with which the insurance carrier,
self-insurer or state insurance fund has contracted, shall notify the
provider requesting authorization of the requirement that the claimant
obtain or undergo the special diagnostic test, x-ray examination,
magnetic resonance imaging or other radiological examination or test
with a provider or at a facility affiliated with the network or networks
with which it has contracted, the contact information for the network
and a list of the providers and facilities within the claimant's
geographic location, as defined by regulation of the board. The
claimant, in consultation with the provider who requested the special
diagnostic test, x-ray examination, magnetic resonance imaging or other
radiological test or exam, will determine the provider or facility from
within the network which will perform such diagnostic test, x-ray
examination, magnetic resonance imaging or other radiological
examination or test.
(d) The results of the special diagnostic test, x-ray examination,
magnetic resonance imaging or other radiological test or exam must be
sent to the provider who requested the test or exam immediately upon
completion of the report detailing the results.
* NB Effective January 1, 2028
Medical appeals unit. 1. There is hereby created a medical
appeals unit. Such medical appeals unit shall consist of three
physicians licensed to practice in this state and known to represent the
schools of medical practice eligible to practice under this chapter. The
members of the medical appeals units shall be appointed by the governor:
provided that the members of the medical appeals unit of the industrial
council heretofore appointed and in office at the time this section
takes effect shall be and they are hereby constituted members of the
medical appeals unit hereby created, and they shall continue in office
as such until July first, nineteen hundred fifty-four. The members next
appointed shall be appointed as follows: one for term expiring December
thirty-first, nineteen hundred fifty-five; one for term expiring
December thirty-first, nineteen hundred fifty-six; and one for term
expiring December thirty-first, nineteen hundred fifty-seven. The
members thereafter appointed, except to fill a vacancy created otherwise
than by expiration of term, shall be appointed for terms of three years
each. The governor may remove any member of the medical appeals unit
when such member ceases to be licensed to practice. The chairman shall
designate an employee of the board to act as secretary of the medical
appeals unit.
2. Members of the medical appeals unit shall be entitled to
compensation at a rate not exceeding one hundred fifty dollars per day
for each day actually spent in the performance of their duties under
this chapter, but no member shall be entitled to compensation for such
duties in excess of seven thousand five hundred dollars during any year.
They shall also be paid their reasonable and necessary traveling and
other expenses while engaged in the performance of their duties.
3. The medical appeals unit shall (a) consider all matters connected
with the practice of medicine submitted to it by the workmen's
compensation board or the chairman thereof;
(b) prescribe rules and regulations to govern the procedure of
investigations and hearings by the medical societies or boards of
charges against authorized physicians and licensed compensation medical
bureaus, laboratories and bureaus engaged in x-ray diagnosis or
treatment, in clinical diagnosis or in physiotherapy or other
therapeutic procedures, as provided in section thirteen-d and thirteen-e
of this chapter;
(c) review, upon request, charges made by a physician, compensation
medical bureau or laboratory or bureau engaged in x-ray diagnosis or
treatment, in clinical diagnosis, or in physiotherapy or other
therapeutic procedures, that any medical society or board has improperly
refused to recommend authorization of the physician, compensation
medical bureau or laboratory or bureau to do compensation work, and if
it sustain the charges, recommend such authorization to the chairman;
(d) review, upon request, charges made by a physician, compensation
medical bureau or laboratory or bureau engaged in x-ray diagnosis or
treatment, in clinical diagnosis, or in physiotherapy or other
therapeutic procedures, that any medical society or board has improperly
recommended that his or its authorization to do compensation work be
revoked, and if it sustain the charges, recommend to the chairman that
such authorization not be revoked.
In each case arising under this subdivision the medical appeals unit
may re-open the matter and receive further evidence, and its decision
and recommendation shall be advisory to the chairman and shall not be
binding or conclusive upon him.
4. The medical appeals unit shall adopt rules and regulations to
govern its own proceedings. The secretary of the medical appeals unit
shall keep a complete record of all the proceedings of the unit which
shall show the names of the members present at each meeting and every
matter considered and the action taken thereon. Such records shall be
filed in the office of the secretary of the board.
5. The provisions of sections nineteen-a and nineteen-b of this
chapter limiting and restricting professional activities of physicians
or surgeons in the employ of the board shall also be applicable to and
binding upon members of the medical appeals unit.
6. For the purpose of exercising the powers and performing the duties
set forth in this section, the medical appeals unit created hereunder
shall be deemed to be a continuation of the medical appeals unit of the
industrial council of the department of labor; and all proceedings
pending before the medical appeals unit of the industrial council of the
department of labor, are hereby transferred to the medical appeals unit
without prejudice to the rights of any party to such proceeding.
The medical appeals unit, subject to the provisions of this chapter,
shall succeed to all the rights, powers, duties and obligations of the
medical appeals unit of the industrial council, insofar as they relate
to workmen's compensation.
Wherever the term "medical appeals unit of the industrial council"
appears in this chapter or in the rules or regulations promulgated
thereunder, it shall be construed to mean the medical appeals unit
created hereunder.
* § 13-b. Authorization of providers, medical bureaus and laboratories
by the chair. 1. No person shall render medical care or conduct
independent medical examinations under this chapter without such
authorization by the chair. As used in this title, the following
definitions shall have the following meanings unless their context
requires otherwise:
(a) "Acupuncturist" shall mean licensed as having completed a formal
course of study and having passed an examination in accordance with the
education law, the regulations of the commissioner of education, and the
requirements of the board of regents. Acupuncturists are required by the
education law to advise, in writing, each patient of the importance of
consulting with a physician for the condition or conditions
necessitating acupuncture care, as prescribed by the education law.
(b) "Chair" of the board shall mean either the chair or the chair's
designee.
(c) "Chiropractor" shall mean licensed and having completed two years
of preprofessional college study and a four-year resident program in
chiropractic in accordance with the education law, and consistent with
the licensing requirements of the commissioner of education.
(d) "Dentist" shall mean licensed and having completed a four-year
course of study leading to a D.D.S. or D.D.M. degree, or an equivalent
degree, in accordance with the education law and the licensing
requirements of the commissioner of education.
(e) "Employer" shall mean a self-insured employer or, if insured, the
insurance carrier.
(f) "Independent medical examination" shall mean an examination
performed by a physician, podiatrist, chiropractor or psychologist,
authorized under this section to perform such examination, for the
purpose of examining or evaluating injury or illness pursuant to
paragraph (b) of subdivision four of section thirteen-a and section one
hundred thirty-seven of this chapter and as more fully set forth in
regulation.
(g) "Nurse practitioner" shall mean a licensed registered professional
nurse certified pursuant to section sixty-nine hundred ten of the
education law acting within their lawful scope of practice.
(h) "Occupational therapist" shall mean licensed as having at least a
bachelor's or master's degree in occupational therapy from a registered
program with the education department or receipt of a diploma or degree
resulting from completion of not less than four years of postsecondary
study, which includes the professional study of occupational therapy in
accordance with the education law and the regulations of the
commissioner of education.
(i) "Physical therapist" shall mean licensed in accordance with the
education law and the licensing requirements of the commissioner of
education.
(j) "Physician" shall mean licensed with a degree of doctor of
medicine, M.D., or doctor of osteopathic medicine, D.O., or an
equivalent degree in accordance with the education law and the licensing
requirements of the state board of medicine and the regulations of the
commissioner of education.
(k) "Physician assistant" shall mean a licensed provider who is
licensed as a physician assistant pursuant to section sixty-five hundred
forty-one of the education law.
(l) "Podiatrist" shall mean a doctor of podiatric medicine licensed as
having received a doctoral degree in podiatric medicine in accordance
with the regulations of the commissioner of education and the education
law, and must satisfactorily meet all other requirements of the state
board for podiatric medicine.
(m) "Provider" shall mean a duly licensed acupuncturist, chiropractor,
nurse practitioner, occupational therapist, physical therapist,
physician, physician assistant, podiatrist, psychologist, or social
worker authorized by the chair.
(n) "Psychologist" shall mean licensed as having received a doctoral
degree in psychology from a program of psychology registered with the
state education department or the substantial equivalent thereof in
accordance with the education law, the requirements of the state board
for psychology, and the regulations of the commissioner of education.
(o) "Social worker" shall mean a licensed clinical social worker. A
licensed clinical social worker has completed a master's degree of
social work that includes completion of a core curriculum of at least
twelve credit hours of clinical courses or the equivalent post-graduate
clinical coursework, in accordance with the education law and the
regulations of the commissioner of education.
(p) "Physical therapist assistant" shall mean licensed in accordance
with the education law and the licensing requirements of the
commissioner of education.
(q) "Occupational therapy assistant" shall mean licensed in accordance
with the education law and the licensing requirements of the
commissioner of education.
2. Any provider licensed pursuant to the education law to provide
medical care and treatment in the state of New York may render emergency
care and treatment in an emergency hospital or urgent care setting
providing emergency treatment under this chapter without authorization
by the chair under this section; (a) Such licensed provider as
identified in this subdivision who is on staff at any hospital or urgent
care center providing emergency treatment may continue such medical care
under this chapter while an injured employee remains a patient in such
hospital or urgent care setting; and
(b) Under the direct supervision of an authorized provider, medical
care may be rendered by a registered nurse or other person trained in
laboratory or diagnostic techniques within the scope of such person's
specialized training and qualifications. This supervision shall be
evidenced by signed records of instructions for treatment and signed
records of the patient's condition and progress. Reports of such
treatment and supervision shall be made by such provider to the chair in
the format prescribed by the chair at such times as the chair may
require.
(b-1) Under the direction and supervision of an authorized
occupational therapist, occupational therapy services may be rendered by
an occupational therapy assistant. Under the direction and supervision
of an authorized physical therapist, physical therapy services may be
rendered by a physical therapist assistant. Where any such care or
treatment is rendered, records of the patient's condition and progress,
together with records of instruction for treatment, if any, shall be
maintained by the physical therapist or occupational therapist and by
the referring physician, physician assistant, podiatrist, or nurse
practitioner. Said records shall be submitted to the chair on forms and
at such times as the chair may require.
(b-2) Under the supervision of any authorized provider, any resident
or fellow who may practice medicine as an exempt person as provided for
in title eight of the education law, may render medical care under this
chapter so long as the supervisory requirements of the education law are
met and neither the supervising provider nor resident or fellow have
been prohibited from treating workers' compensation claimants pursuant
to section thirteen-d of this article.
(c) Where it would place an unreasonable burden upon the employer or
carrier to arrange for, or for the claimant to attend, an independent
medical examination by an authorized provider, the employer or carrier
shall arrange for such examination to be performed by a qualified
provider in a medical facility convenient to the claimant.
(d) Upon the prescription or referral of an authorized physician,
physician assistant, podiatrist, or nurse practitioner acting within the
scope of his or her practice, care or treatment may be rendered to an
injured employee by an authorized physical therapist, occupational
therapist or acupuncturist provided the conditions and the treatment
performed are among the conditions that the physical therapist,
occupational therapist or acupuncturist is authorized to treat pursuant
to the education law or the regulations of the commissioner of
education. Where any such care or treatment is rendered, records of the
patient's condition and progress, together with records of instruction
for treatment, if any, shall be maintained by the physical therapist,
occupational therapist or acupuncturist rendering treatment and by the
referring physician, physician assistant, podiatrist, or nurse
practitioner. Said records shall be submitted to the chair on forms and
at such times as the chair may require.
(e) A record, report or opinion of a physical therapist, occupational
therapist, acupuncturist or physician assistant shall not be considered
as evidence of the causal relationship of any condition to a work
related accident or occupational disease under this chapter. Nor may a
record, report or opinion of a physical therapist, occupational
therapist or acupuncturist be considered evidence of disability. Nor may
a record, report or opinion of a physician assistant be considered
evidence of the presence of a permanent or initial disability or the
degree thereof.
(f) An independent medical examination performed in accordance with
section one hundred thirty-seven of this chapter, may only be performed
by a physician, podiatrist, chiropractor or psychologist authorized to
perform such examinations by the chair, or as specified in regulation,
when qualified by the board.
3. A provider properly licensed or certified pursuant to the
regulations of the commissioner of education and the requirements of the
education law desirous of being authorized to render medical care under
this chapter and/or to conduct independent medical examinations in
accordance with paragraph (b) of subdivision four of section thirteen-a
and section one hundred thirty-seven of this chapter shall file an
application for authorization under this chapter with the chair or
chair's designee. Prior to receiving authorization, a physician must,
together with submission of an application to the chair, submit such
application to the medical society of the county in which the
physician's office is located or of a board designated by such county
society or of a board representing duly licensed physicians of any other
school of medical practice in such county, and such medical society
shall submit the recommendation to the board. In the event such county
society or board fails to take action upon a physician's completed and
signed application within forty-five days, the chair may complete review
of the application without such approval. Upon approval of the
application by the chair or the chair's designee, the applicant shall
further agree to refrain from subsequently treating for remuneration, as
a private patient, any person seeking medical treatment, or submitting
to an independent medical examination, in connection with, or as a
result of, any injury compensable under this chapter, if he or she has
been removed from the list of providers authorized to render medical
care or to conduct independent medical examinations under this chapter,
or if the person seeking such treatment, or submitting to an independent
medical examination, has been transferred from his or her care in
accordance with the provisions of this chapter. This agreement shall run
to the benefit of the injured person so treated or examined, and shall
be available to him or her as a defense in any action by such provider
for payment for treatment rendered by a provider after he or she has
been removed from the list of providers authorized to render medical
care or to conduct independent medical examinations under this chapter,
or after the injured person was transferred from his or her care in
accordance with the provisions of this chapter.
4. Laboratories and bureaus engaged in x-ray diagnosis or treatment or
in physiotherapy or other therapeutic procedures and which participate
in the diagnosis or treatment of injured workers under this chapter
shall be operated or supervised by providers authorized under this
chapter and shall be subject to the provisions of section thirteen-c of
this article. The person in charge of diagnostic clinical laboratories
duly authorized under this chapter shall possess the qualifications
established by the public health and health planning council for
approval by the state commissioner of health or, in the city of New
York, the qualifications approved by the board of health of said city
and shall maintain the standards of work required for such approval.
* NB Effective until January 1, 2028
* § 13-b. Authorization of providers, medical bureaus and laboratories
by the chair. 1. Any provider as defined in paragraph (m) of this
subdivision shall be authorized to render medical care or treatment
under this chapter. Independent medical examinations may only be
performed by a physician, podiatrist, chiropractor, or psychologist
authorized to perform such examinations by the chair, or as specified in
regulations. No provider may conduct independent medical examinations
unless performed in accordance with paragraph (b) of subdivision four of
section thirteen-a and section one hundred thirty-seven of this chapter.
As used in this chapter, the following definitions shall have the
following meanings unless their context requires otherwise:
(a) "Acupuncturist" shall mean licensed as having completed a formal
course of study and having passed an examination in accordance with the
education law, the regulations of the commissioner of education, and the
requirements of the board of regents. Acupuncturists are required by the
education law to advise, in writing, each patient of the importance of
consulting with a physician for the condition or conditions
necessitating acupuncture care, as prescribed by the education law.
(b) "Chair" of the board shall mean either the chair or the chair's
designee.
(c) "Chiropractor" shall mean licensed and having completed two years
of preprofessional college study and a four-year resident program in
chiropractic in accordance with the education law, and consistent with
the licensing requirements of the commissioner of education.
(d) "Dentist" shall mean licensed and having completed a four-year
course of study leading to a D.D.S. or D.D.M. degree, or an equivalent
degree, in accordance with the education law and the licensing
requirements of the commissioner of education.
(e) "Employer" shall mean a self-insured employer or, if insured, the
insurance carrier.
(f) "Independent medical examination" shall mean an examination
performed by a physician, podiatrist, chiropractor or psychologist,
authorized under this section to perform such examination, for the
purpose of examining or evaluating injury or illness in accordance with
paragraph (b) of subdivision four of section thirteen-a and section one
hundred thirty-seven of this chapter and as more fully set forth in
regulation.
(g) "Nurse practitioner" shall mean a licensed registered professional
nurse certified pursuant to section sixty-nine hundred ten of the
education law acting within their lawful scope of practice.
(h) "Occupational therapist" shall mean licensed as having at least a
bachelor's or master's degree in occupational therapy from a registered
program with the education department or receipt of a diploma or degree
resulting from completion of not less than four years of postsecondary
study, which includes the professional study of occupational therapy in
accordance with the education law and the regulations of the
commissioner of education.
(i) "Physical therapist" shall mean licensed in accordance with the
education law and the licensing requirements of the commissioner of
education.
(j) "Physician" shall mean licensed with a degree of doctor of
medicine, M.D., or doctor of osteopathic medicine, D.O., or an
equivalent degree in accordance with the education law and the licensing
requirements of the state board of medicine and the regulations of the
commissioner of education.
(k) "Physician assistant" shall mean a licensed provider who is
licensed as a physician assistant pursuant to section sixty-five hundred
forty-one of the education law.
(l) "Podiatrist" shall mean a doctor of podiatric medicine licensed as
having received a doctoral degree in podiatric medicine in accordance
with the regulations of the commissioner of education and the education
law, and must satisfactorily meet all other requirements of the state
board for podiatric medicine.
(m) "Authorized provider" or "provider" shall mean a duly licensed
acupuncturist, chiropractor, nurse practitioner, occupational therapist,
physical therapist, physician, physician assistant, podiatrist,
psychologist, or social worker as defined in this section who is not
currently on the exclusion list pursuant to section thirteen-d of this
article.
(n) "Psychologist" shall mean licensed as having received a doctoral
degree in psychology from a program of psychology registered with the
state education department or the substantial equivalent thereof in
accordance with the education law, the requirements of the state board
for psychology, and the regulations of the commissioner of education.
(o) "Social worker" shall mean a licensed clinical social worker. A
licensed clinical social worker has completed a master's degree of
social work that includes completion of a core curriculum of at least
twelve credit hours of clinical courses or the equivalent post-graduate
clinical coursework, in accordance with the education law and the
regulations of the commissioner of education.
(p) "Physical therapist assistant" shall mean licensed in accordance
with the education law and the licensing requirements of the
commissioner of education.
(q) "Occupational therapy assistant" shall mean licensed in accordance
with the education law and the licensing requirements of the
commissioner of education.
(r) "Exclusion list" shall mean the list published and maintained by
the chair in accordance with section thirteen-d of this article listing
providers who are currently disqualified from rendering care or from
performing independent medical examinations under this chapter.
2. Any provider rendering medical care or treatment under this chapter
must comply with all applicable laws, regulations and guidance,
including any applicable New York Medical Treatment Guidelines and the
Official New York Medical Fee Schedule(s).
(a) Such provider as identified in this subdivision who is on staff at
any hospital or urgent care center providing emergency treatment may
continue such medical care or treatment under this chapter while an
injured employee remains a patient in such hospital or urgent care
setting.
(b) Under the direct supervision of an authorized provider, medical
care may be rendered by a registered nurse or other person trained in
laboratory or diagnostic techniques within the scope of such person's
specialized training and qualifications. This supervision shall be
evidenced by signed records of instructions for treatment and signed
records of the patient's condition and progress. Reports of such
treatment and supervision shall be made by such provider to the chair in
the format prescribed by the chair at such times as the chair may
require.
(b-1) Under the direction and supervision of an authorized
occupational therapist, occupational therapy services may be rendered by
an occupational therapy assistant. Under the direction and supervision
of an authorized physical therapist, physical therapy services may be
rendered by a physical therapist assistant. Where any such care or
treatment is rendered, records of the patient's condition and progress,
together with records of instruction for treatment, if any, shall be
maintained by the physical therapist or occupational therapist and by
the referring physician, physician assistant, podiatrist, or nurse
practitioner. Said records shall be submitted to the chair on forms and
at such times as the chair may require.
(b-2) Under the supervision of any authorized provider, any resident
or fellow who may practice medicine as an exempt person as provided for
in title eight of the education law, may render medical care or
treatment under this chapter so long as the supervisory requirements of
the education law are met and neither the supervising provider nor
resident or fellow have been prohibited from treating workers'
compensation claimants pursuant to section thirteen-d of this article.
(c) Where it would place an unreasonable burden upon the employer or
carrier to arrange for, or for the claimant to attend, an independent
medical examination by a provider authorized to perform independent
medical examinations in accordance with paragraph (b) of subdivision
four of section thirteen-a of this article and section one hundred
thirty-seven of this chapter, the employer or carrier shall arrange for
such examination to be performed by a qualified provider in a medical
facility convenient to the claimant.
(d) Upon the prescription or referral of a physician, physician
assistant, podiatrist, or nurse practitioner who is not currently on the
exclusion list pursuant to section thirteen-d of this article acting
within the scope of their practice, medical care or treatment may be
rendered to an injured employee by a physical therapist, occupational
therapist or acupuncturist who is not currently on the exclusion list
pursuant to section thirteen-d of this article provided the conditions
and the treatment performed are among the conditions that the physical
therapist, occupational therapist or acupuncturist is authorized to
treat pursuant to the education law or the regulations of the
commissioner of education. Where any such medical care or treatment is
rendered, records of the patient's condition and progress, together with
records of instruction for treatment, if any, shall be maintained by the
physical therapist, occupational therapist or acupuncturist rendering
treatment and by the referring physician, physician assistant,
podiatrist, or nurse practitioner. Said records shall be submitted to
the chair on forms and at such times as the chair may require.
(e) A record, report or opinion of a physical therapist, occupational
therapist, acupuncturist or physician assistant shall not be considered
as evidence of the causal relationship of any condition to a work
related accident or occupational disease under this chapter. Nor may a
record, report or opinion of a physical therapist, occupational
therapist or acupuncturist be considered evidence of disability. Nor may
a record, report or opinion of a physician assistant be considered
evidence of the presence of a permanent or initial disability or the
degree thereof.
(f) An independent medical examination performed in accordance with
section one hundred thirty-seven of this chapter, may only be performed
by a physician, podiatrist, chiropractor or psychologist authorized to
perform such examinations by the chair, or as specified in regulation,
when qualified by the board.
3. In order to perform independent medical examinations in accordance
with paragraph (b) of subdivision four of section thirteen-a and section
one hundred thirty-seven of this chapter, a physician, podiatrist,
chiropractor, or psychologist properly licensed or certified pursuant to
the regulations of the commissioner of education and the requirements of
the education law shall file an application for authorization under this
chapter with the chair or chair's designee in the format prescribed by
the chair.
4. Laboratories and bureaus engaged in x-ray diagnosis or treatment or
in physiotherapy or other therapeutic procedures and which participate
in the diagnosis or treatment of injured workers under this chapter
shall be operated or supervised by providers authorized under this
chapter and shall be subject to the provisions of section thirteen-c of
this article. The person in charge of diagnostic clinical laboratories
duly authorized under this chapter shall possess the qualifications
established by the public health and health planning council for
approval by the state commissioner of health or, in the city of New
York, the qualifications approved by the board of health of said city
and shall maintain the standards of work required for such approval.
* NB Effective January 1, 2028
Licensing of compensation medical bureaus and laboratories. 1.
The chairman may, upon the recommendation of the medical society of the
county or of a board as provided in section thirteen-b, authorize and
license compensation medical bureaus in such counties operated by
qualified physicians wholly or principally for the diagnosis and
treatment of industrial injuries or illnesses in respect to which they
are authorized to render medical care under this chapter. The chairman,
however, shall not authorize or license more than two such bureaus
operated by the same physician. The chairman may, upon the
recommendation of the medical society of the county or of a board as
provided in section thirteen-b, authorize and license separate
laboratories and bureaus engaged in X-ray diagnosis or treatment and
clinical diagnosis, or in physiotherapy or other therapeutic procedures,
which participate in the diagnosis or treatment of injured workmen under
this chapter. The chairman, however, shall not authorize or license more
than two such laboratories or bureaus operated by the same physician.
Application for such authorization shall be made on forms to be
furnished by the chairman, and shall disclose in full the nature of the
personnel and equipment of such bureaus. If within sixty days after such
application has been filed the medical society or board refuses or fails
to act or refuses to recommend to the chairman that such license be
granted, the applicant may appeal to the medical appeals unit. Each such
bureau or laboratory which receives such authorization shall:
(a) Make reports on its personnel and equipment in such form and at
such times as may be required by the chairman; and
(b) Be subject to inspection by the chairman or the medical society of
the county in which such bureau or laboratory is located; and
2. No claim for services in connection with x-ray examination,
diagnosis or treatment of any claimant shall be valid or enforceable
except by a laboratory or bureau of a voluntary hospital authorized and
licensed under subdivision one of this section, or except by a physician
duly authorized as a roentgenologist by the chairman for services
performed by such physician or under his immediate supervision.
3. (a) The chairman may authorize a medical center, jointly operated
by labor and management representatives as a non-profit corporation or
as a non-profit benefit trust, approved by and under the supervision of
the New York state department of health, to provide medical, surgical,
dental, optometric, podiatric, or other attendance or treatment,
including X-ray diagnosis or treatment, physiotherapy or other
therapeutic procedures or services, laboratory services and any and all
other services required to be provided for an injured employee under
section thirteen of this chapter, entitled "Treatment and care of
injured employees".
(b) Application for such authorization shall be made on forms to be
furnished by the chairman, and shall disclose in full the nature of the
personnel and equipment of such medical center. Each such medical center
which receives such authorization shall:
(i) Make reports on its personnel and equipment in such form and at
such times as may be required by the chairman;
(ii) Be subject to inspection by the chairman;
(c) All treatment and services provided hereunder shall be provided on
an out-patient basis to employees, who are claimants for workmen's
compensation, eligible to use the medical center pursuant to an
agreement, plan, deed of trust or labor-management collective bargaining
agreement.
(d) (i) A physician rendering medical care at a medical center
authorized hereunder must be authorized to render such care pursuant to
this chapter and he shall limit his professional activities hereunder to
such medical care as his experience and training qualify him to render.
(ii) When para-medical, laboratory or X-ray services or other medical
care is required it shall be rendered, under the active and personal
supervision of an authorized physician, by a registered nurse or other
person trained in laboratory or diagnostic techniques within the scope
of such person's specialized training and qualifications. This
supervision shall be evidenced by signed records of instructions for
treatment and signed records of the patient's condition and progress.
Reports of such treatment and supervision shall be made by such
physician to the chairman on such forms and at such times as the
chairman may require.
(iii) When physical therapy care is required it shall be rendered by a
duly licensed physical therapist upon the referral which may be
directive as to treatment of an authorized physician or podiatrist
within the scope of such physical therapist's specialized training and
qualifications as defined in article one hundred thirty-six of the
education law. Reports of such treatment and records of instruction for
treatment, if any, shall be maintained by the physical therapist and
referring professional and submitted to the chairman on such forms and
at such times as the chairman may require.
(iv) When occupational therapy care is required it shall be rendered
by a duly licensed and registered occupational therapist upon the
prescription or referral of an authorized physician within the scope of
such occupational therapist's specialized training and qualifications as
defined in article one hundred fifty-six of the education law. Reports
of such treatment and records of instruction for treatment, if any,
shall be maintained by the occupational therapist and referring
professional and submitted to the chairman on such forms and at such
times as the chairman may require.
(v) The physician rendering the medical care hereunder shall be in
charge of the care unless, in his judgment, it is necessary to refer the
case to a specially trained and qualified physician, which physician
shall then assume complete responsibility for and supervision of any
further medical care rendered.
(e) Notwithstanding any provision of this chapter to the contrary, a
medical center authorized by the chairman to render medical care and
laboratory services under this section, is authorized and may charge for
any and all services rendered in accordance with such schedule or
schedules prepared and established by the chairman.
(f) Nothing herein contained shall operate to prevent such employee
from selecting for rendering or continuance of any medical treatment or
care required, any physician authorized by the chairman to render
medical care as hereinabove provided, in accordance with section
thirteen-a, of this chapter.
(g) The chairman shall have full power and authority and it shall be
his duty to investigate instances of misconduct, or violations of the
provisions of this chapter or violations of the rules promulgated by the
chairman under the provisions of this chapter, or failure to submit full
and truthful medical reports directly to the chairman within the time
limits provided under subdivision four of section thirteen-a of this
chapter; and, after a hearing, to temporarily suspend or revoke the
license of any such medical center. The chairman may also temporarily
suspend or revoke the license of any such medical center upon finding,
after a hearing, that such medical center has been guilty of
professional or other misconduct or that the personnel of such center is
not properly qualified under this chapter or the equipment of such
medical center is inadequate for the proper rendering of medical care.
(h) The chairman may adopt such reasonable rules and regulations for
the authorization and continued supervision of medical centers under
this section, as he may deem necessary and proper.
4. (a) The chairman may authorize a hospital as defined in article
twenty-eight of the public health law or a health maintenance
organization holding a valid certificate of authority issued pursuant to
article forty-four of the public health law or operating under the
provisions of article forty-three of the insurance law to provide
out-patient medical care under this chapter.
(b) Application for such authorization shall be made on forms to be
furnished by the chairman, and shall disclose in full the nature of the
personnel and equipment of such hospital or health maintenance
organization. Each such hospital or health maintenance organization
which receives such authorization shall:
(i) Make reports on its personnel and equipment in such form and at
such times as may be required by the chairman; and
(ii) Be subject to inspection and investigation as provided hereunder.
(c) All treatment and services provided hereunder shall be provided on
an out-patient basis to workers' compensation claimants.
(d) (i) A physician rendering medical care at a hospital or health
maintenance organization authorized hereunder must be authorized to
render such care pursuant to this chapter and he or she shall limit his
or her professional activities hereunder to such medical care as his or
her experience and training qualify him or her to render. The physician
rendering the medical care shall sign and submit all forms and reports
as the chairman may require.
(ii) When para-medical, laboratory or X-ray services or other medical
care is required it shall be rendered, under the active and personal
supervision of an authorized physician, by a registered nurse or other
person trained in laboratory or diagnostic techniques within the scope
of such person's specialized training and qualifications. This
supervision shall be evidenced by signed records of instructions for
treatment and signed records of the patient's condition and progress.
Reports of such treatment and supervision shall be made by such
physician to the chairman on such forms and at such times as the
chairman may require.
(iii) When physical therapy care is required it shall be rendered by a
duly licensed physical therapist upon the referral which may be
directive as to treatment of an authorized physician or podiatrist
within the scope of such physical therapist's specialized training and
qualifications as defined in article one hundred thirty-six of the
education law. Reports of such treatment and records of instruction for
treatment, if any, shall be maintained by the physical therapist and
referring professional and submitted to the chairman of such forms and
at such times as the chairman may require.
(iv) When occupational therapy care is required it shall be rendered
by a duly licensed and registered occupational therapist upon the
prescription or referral of an authorized physician within the scope of
such occupational therapist's specialized training and qualifications as
defined in article one hundred fifty-six of the education law. Reports
of such treatment and records of instruction for treatment, if any,
shall be maintained by the occupational therapist and referring
professional and submitted to the chairman on such forms and at such
times as the chairman may require.
Reports of such treatment and supervision shall be made by such
physician to the chairman on such forms and at such times as the
chairman may require.
(v) The physician rendering the medical care hereunder shall be in
charge of the care unless, in his or her judgment, it is necessary to
refer the case to a specially trained and qualified authorized
physician, which physician shall then assume complete responsibility for
and supervision of any further medical care rendered.
(e) Notwithstanding any provision of this chapter to the contrary, a
hospital or health maintenance organization authorized by the chairman
to render medical care and laboratory services under this section, is
authorized and may charge for any and all services rendered in
accordance with such schedule or schedules prepared and established by
the chairman.
(f) Nothing herein contained shall operate to prevent such employee
from selecting for rendering or continuance of any medical treatment or
care required, any physician authorized by the chairman to render
medical care as hereinabove provided, in accordance with section
thirteen-a of this chapter.
(g) (i) The department of health shall conduct inspections and
investigations and make recommendations with respect to charges of
professional or other misconduct or that the personnel of an authorized
hospital or health maintenance organization are not properly qualified
under this chapter or that the equipment of such hospital or health
maintenance organization is inadequate for the proper rendering of
medical care. After such inspection and investigation the department of
health shall refer its report and recommendations to the chairman, who
shall have full power and authority to temporarily suspend or revoke the
authorization under this subdivision of any such hospital or health
maintenance organization upon finding, after a hearing, that such
hospital or health maintenance organization has been guilty of
professional or other misconduct, or that the personnel of such hospital
or health maintenance organization are not properly qualified under this
chapter or the equipment of such hospital or health maintenance
organization is inadequate for the proper rendering of medical care. The
recommendations of the department of health shall be advisory to the
chairman only and shall not be binding or conclusive upon him.
(ii) The chairman shall have full power and authority and it shall be
his duty to investigate violations of the provisions of this chapter or
violations of the rules promulgated by the chairman under the provisions
of this chapter, or failure to submit full and truthful medical reports
directly to the chairman within the time limits provided under
subdivision four of section thirteen-a of this article, and, after a
hearing, to temporarily suspend or revoke the authorization under this
subdivision of any such hospital or health maintenance organization.
(h) The chairman may adopt such reasonable rules and regulations for
the authorization and continued supervision of hospitals and health
maintenance organizations under this section as he may deem necessary
and proper.
* § 13-d. Removal of providers from lists of those authorized to
render medical care or to conduct independent medical examinations. 1.
The medical society of the county in which the physician's office is
located at the time or a board designated by such county society or a
board representing duly licensed physicians of any other school of
medical practice in such county shall investigate, hear and make
findings with respect to all charges as to professional or other
misconduct of any authorized physician as herein provided under rules
and procedure to be prescribed by the medical appeals unit, and shall
report evidence of such misconduct, with their findings and
recommendation with respect thereto, to the chair. Failure to commence
such investigation within sixty days from the date the charges are
referred to the society by the chair or submit findings and
recommendations relating to the charges within one hundred eighty days
from the date the charges are referred shall empower the chair to
appoint, as a hearing officer, a member of the board, employee, or other
qualified hearing officer to hear and report on the charges to the
chair. A qualified hearing officer, who is neither a member of the
board, or employee thereof shall be paid at a reasonable per diem rate
to be fixed by the chair.
Such investigation, hearing, findings, recommendation and report may
be made by the society or board of an adjoining county upon the request
of the medical society of the county in which the alleged misconduct or
infraction of this chapter occurred, subject to the time limit and
conditions set forth herein. The medical appeals unit shall review the
findings and recommendation of such medical society or board, or hearing
officer appointed by the chair upon application of the accused physician
and may reopen the matter and receive further evidence. The findings,
decision and recommendation of such society, board or hearing officer
appointed by the chair or medical appeals unit shall be advisory to the
chair only, and shall not be binding or conclusive upon him or her.
2. The chair shall remove from the list of providers authorized to
render medical care under this chapter, or to conduct independent
medical examinations in accordance with paragraph (b) of subdivision
four of section thirteen-a of this article, the name of any provider who
he or she shall find after reasonable investigation is disqualified
because such provider:
(a) has been guilty of professional or other misconduct or
incompetency in connection with rendering medical services under the
law; or
(b) has exceeded the limits of his or her professional competence in
rendering medical care or in conducting independent medical examinations
under the law, or has made materially false statements regarding his or
her qualifications in his or her application for the recommendation of
the medical society or board as provided in section thirteen-b of this
article; or
(c) has failed to transmit copies of medical reports to claimant's
attorney or licensed representative as provided in subdivision (f) of
section thirteen of this article; or has failed to submit full and
truthful medical reports of all his or her findings to the employer, and
directly to the chair or the board within the time limits provided in
subdivision four of section thirteen-a of this article with the
exception of injuries which do not require (1) more than ordinary first
aid or more than two treatments by a provider or person rendering first
aid, or (2) loss of time from regular duties of one day beyond the
working day or shift; or
(d) knowingly made a false statement or representation as to a
material fact in any medical report made pursuant to this chapter or in
testifying or otherwise providing information for the purposes of this
chapter; or
(e) has solicited, or has employed another to solicit for himself or
herself or for another, professional treatment, examination or care of
an injured employee in connection with any claim under this chapter; or
(f) has refused to appear before, to testify, to submit to a
deposition, or to answer upon request of, the chair, board, medical
appeals unit or any duly authorized officer of the state, any legal
question, or to produce any relevant book or paper concerning his or her
conduct under any authorization granted to him or her under this
chapter; or
(g) has directly or indirectly requested, received or participated in
the division, transference, assignment, rebating, splitting or refunding
of a fee for, or has directly or indirectly requested, received or
profited by means of a credit or other valuable consideration as a
commission, discount or gratuity in connection with the furnishing of
medical or surgical care, an independent medical examination, diagnosis
or treatment or service, including X-ray examination and treatment, or
for or in connection with the sale, rental, supplying or furnishing of
clinical laboratory services or supplies, X-ray laboratory services or
supplies, inhalation therapy service or equipment, ambulance service,
hospital or medical supplies, physiotherapy or other therapeutic service
or equipment, artificial limbs, teeth or eyes, orthopedic or surgical
appliances or supplies, optical appliances, supplies or equipment,
devices for aid of hearing, drugs, medication or medical supplies, or
any other goods, services or supplies prescribed for medical diagnosis,
care or treatment, under this chapter; except that reasonable payment,
not exceeding the technical component fee permitted in the medical fee
schedule, established under this chapter for X-ray examinations,
diagnosis or treatment, may be made by a provider duly authorized as a
roentgenologist to any hospital furnishing facilities and equipment for
such examination, diagnosis or treatment, provided such hospital does
not also submit a charge for the same services. Nothing contained in
this paragraph shall prohibit such providers who practice as partners,
in groups or as a professional corporation or as a university faculty
practice corporation from pooling fees and moneys received, either by
the partnership, professional corporation, university faculty practice
corporation or group by the individual members thereof, for professional
services furnished by any individual professional member, or employee of
such partnership, corporation or group, nor shall the professionals
constituting the partnerships, corporations, or groups be prohibited
from sharing, dividing or apportioning the fees and moneys received by
them or by the partnership, corporation or group in accordance with a
partnership or other agreement.
3. Any person who violates or attempts to violate, and any person who
aids another to violate or attempts to induce him or her to violate the
provisions of paragraph (g) of subdivision two of this section shall be
guilty of a misdemeanor.
4. Nothing in this section shall be construed as limiting in any
respect the power or duty of the chair to investigate instances of
misconduct, either before or after investigation by a medical society or
board as herein provided, or to temporarily suspend the authorization of
any provider that he or she may believe to be guilty of such misconduct.
5. Whenever the department of health or the department of education
shall conduct an investigation with respect to charges of professional
or other misconduct by a provider which results in a report,
determination or consent order that includes a finding of professional
or other misconduct or incompetency by such provider, the chair shall
have full power and authority to temporarily suspend, revoke or
otherwise limit the authorization under this chapter of any provider
upon such finding by the department of health or the department of
education that the provider has been guilty of professional or other
misconduct. The recommendations of the department of health or the
department of education shall be advisory to the chair only and shall
not be binding or conclusive upon the chair.
* NB Effective until January 1, 2028
* § 13-d. Placement of providers on the exclusion list. 1. In
accordance with this section, the chair shall publish and maintain an
exclusion list of providers currently disqualified from rendering
medical care or treatment under this chapter or disqualified from
conducting independent medical examinations in accordance with paragraph
(b) of subdivision four of section thirteen-a and section one hundred
thirty-seven of this chapter.
2. The exclusion list shall include the name of any provider who is
found after reasonable investigation to be disqualified because such
provider:
(a) has been guilty of professional or other misconduct or
incompetency in connection with rendering medical services under the
law; or
(b) has exceeded the limits of their professional competence in
rendering medical care or treatment or in conducting independent medical
examinations under the law, or has, as applicable, made materially false
statements regarding their qualifications in their application; or
(c) has failed to transmit copies of medical reports to claimant's
attorney or licensed representative as provided in subdivision (f) of
section thirteen of this article; or has failed to submit full and
truthful medical reports of all their findings to the employer, and
directly to the chair or the board within the time limits provided in
subdivision four of section thirteen-a of this article with the
exception of injuries which do not require (1) more than ordinary first
aid or more than two treatments by a provider or person rendering first
aid, or (2) loss of time from regular duties of one day beyond the
working day or shift; or
(d) knowingly made a false statement or representation as to a
material fact in any medical report, or in any submission to the board,
made pursuant to this chapter or in testifying or otherwise providing
information for the purposes of this chapter; or
(e) has solicited, or has employed another to solicit for either the
provider's own benefit themself or for another, professional treatment,
examination or care of an injured employee in connection with any claim
under this chapter; or
(f) has refused to appear before, to testify, to submit to a
deposition, or to answer upon request of, the chair, board, or any duly
authorized officer of the state, any legal question, or to produce any
relevant book or paper concerning their conduct in rendering medical
care or treatment or in the performance of an independent medical
examination under this chapter, including when a provider has accepted
payments from both the health insurer and employer or carrier and failed
to reimburse the health insurer after they are given notice; or
(g) has directly or indirectly requested, received or participated in
the division, transference, assignment, rebating, splitting or refunding
of a fee for, or has directly or indirectly requested, received or
profited by means of a credit or other valuable consideration as a
commission, discount or gratuity in connection with the furnishing of
medical or surgical care, an independent medical examination, diagnosis
or treatment or service, including X-ray examination and treatment, or
for or in connection with the sale, rental, supplying or furnishing of
clinical laboratory services or supplies, X-ray laboratory services or
supplies, inhalation therapy service or equipment, ambulance service,
hospital or medical supplies, physiotherapy or other therapeutic service
or equipment, artificial limbs, teeth or eyes, orthopedic or surgical
appliances or supplies, optical appliances, supplies or equipment,
devices for aid of hearing, drugs, medication or medical supplies, or
any other goods, services or supplies prescribed for medical diagnosis,
care or treatment, under this chapter; except that reasonable payment,
not exceeding the technical component fee permitted in the medical fee
schedule, established under this chapter for X-ray examinations,
diagnosis or treatment, may be made by a provider duly authorized as a
roentgenologist to any hospital furnishing facilities and equipment for
such examination, diagnosis or treatment, provided such hospital does
not also submit a charge for the same services. Nothing contained in
this paragraph shall prohibit such providers who practice as partners,
in groups or as a professional corporation or as a university faculty
practice corporation from pooling fees and moneys received, either by
the partnership, professional corporation, university faculty practice
corporation or group by the individual members thereof, for professional
services furnished by any individual professional member, or employee of
such partnership, corporation or group, nor shall the professionals
constituting the partnerships, corporations, or groups be prohibited
from sharing, dividing or apportioning the fees and moneys received by
them or by the partnership, corporation or group in accordance with a
partnership or other agreement; or
(h) has demonstrated a repeated failure to follow the laws of this
chapter and applicable laws, regulations, and guidance, including any
applicable New York medical treatment guidelines and the official New
York medical fee schedule(s); or
(i) has misrepresented their credentials; or
(j) has failed to timely complete any trainings required by the chair;
or
(k) had previously lost the privilege to treat injured workers by
being suspended, removed, denied authorization, or by voluntarily
resigning their authorization under this chapter prior to January first,
two thousand twenty-eight, and whose authorization had not been restored
prior to January first, two thousand twenty-eight.
3. Any person who violates or attempts to violate, and any person who
aids another to violate or attempts to induce them to violate the
provisions of paragraph (g) of subdivision two of this section shall be
guilty of a misdemeanor.
4. Nothing in this section shall be construed as limiting in any
respect the power or duty of the chair to investigate instances of
misconduct, either before or after investigation by a medical society or
board as herein provided, or to add any provider to the exclusion list
that the chair or the chair's designee may believe to be guilty of such
misconduct.
5. Whenever the department of health or the department of education
shall conduct an investigation with respect to charges of professional
or other misconduct by a provider which results in a report,
determination or consent order that includes a finding of professional
or other misconduct or incompetency by such provider, the chair shall
have full power and authority to add any provider to the exclusion list
upon such finding by the department of health or the department of
education that the provider has been guilty of professional or other
misconduct. The recommendations of the department of health or the
department of education shall be advisory to the chair only and shall
not be binding or conclusive upon the chair.
6. The chair may promulgate regulations to effectuate the publication
and maintenance of the exclusion list. Providers on the exclusion list
may petition the board to be taken off the exclusion list in a format
prescribed by the chair.
* NB Effective January 1, 2028
Revocation of licenses of compensation medical bureaus and
laboratories. The chairman may revoke the license of any compensation
medical bureau or laboratory upon a finding certified to him by the
medical society of the county in which such bureau or laboratory is
located, or by a board designated by such medical society or otherwise,
as provided under section thirteen-b, or by the medical appeals unit,
that such bureau or laboratory has been guilty of professional or other
misconduct, or of violation of the provisions of this chapter, or that
the personnel of such bureau is not properly qualified under this
chapter, or that the equipment of such bureau or laboratory is
inadequate for the proper rendering of medical care.
The medical appeals unit may review the determination of such medical
society or board, and on application of the compensation medical bureau
or laboratory accused must do so, and may reopen the matter and receive
further evidence. The decision and recommendation of the medical appeals
unit shall be advisory to the chairman, and shall not be binding or
conclusive upon him.
The medical appeals unit shall prescribe the rules of procedure
governing the investigation, hearing and determination of all charges of
professional or other misconduct under this section.
Nothing in this section shall be construed as limiting in any respect
the power or duty of the chairman to investigate instances of
misconduct, or violations of the provisions of this chapter, or
violations of rules promulgated by the chairman under the provisions of
this chapter, or failure to submit full and truthful medical reports
directly to the chairman within the time limits provided under
subdivision four of section thirteen-a of this chapter, either before or
after investigation or hearing by a medical society or board, or review
by the medical appeals unit as herein provided, and to temporarily
suspend the license of any laboratory or medical bureau, or after a
hearing to revoke the same.
* § 13-f. Payment of medical fees. (1) Fees for medical services shall
be payable only to a physician or other qualified person permitted by
sections thirteen-b, thirteen-k, thirteen-l and thirteen-m of this
chapter or other authorized provider of health care under the education
law or the public health law permitted to render medical care or
treatment under this chapter, or to the agent, executor or administrator
of the estate of such physician or such other qualified person. Except
as provided in section thirteen-d of this chapter, no provider of health
care rendering medical care or treatment to a compensation claimant,
shall collect or receive a fee from such claimant within this state, but
shall have recourse for payment of services rendered only to the
employer under the provisions of this chapter. Any compensation claimant
who pays a fee to a provider of health care for medical care or
treatment under this chapter shall have a cause of action against such
provider of health care for the recovery of the money paid, which cause
of action may be assigned to the chair in trust for the assigning
claimant. All such assignments shall run to the chair. The chair may sue
the physician, or other authorized provider of health care as herein
described on the assigned cause of action with the benefits and subject
to the provisions of existing law applying to such actions by the
claimant himself or herself. Hospitals shall not be entitled to receive
the remuneration paid to physicians on their staff for medical and
surgical services.
(2) Whenever his attendance at a hearing is required, the physician of
the injured employee shall be entitled to receive a fee from the
employer, or carrier, in an amount to be fixed by the board in addition
to any fee payable under section eight thousand one of the civil
practice law and rules.
* NB Effective until January 1, 2028
* § 13-f. Payment of medical fees. (1) Fees for medical services shall
be payable only to a provider permitted by section thirteen-b of this
article or other authorized provider of health care under the education
law or the public health law permitted to render medical care or
treatment under this chapter, or to the agent, executor or administrator
of the estate of such provider or such other qualified person. Except as
provided in section thirteen-d of this article, no provider of health
care rendering medical care or treatment to a compensation claimant,
shall collect or receive a fee from such claimant within this state, but
shall have recourse for payment of services rendered only to the
employer under the provisions of this chapter. Any compensation claimant
who pays a fee to a provider of health care for medical care or
treatment under this chapter shall have a cause of action against such
provider of health care for the recovery of the money paid, which cause
of action may be assigned to the chair in trust for the assigning
claimant. All such assignments shall run to the chair. The chair may sue
the physician, or other authorized provider of health care as herein
described on the assigned cause of action with the benefits and subject
to the provisions of existing law applying to such actions by the
claimant. Hospitals shall not be entitled to receive the remuneration
paid to providers on their staff for medical and surgical services.
(2) Whenever their attendance at a hearing is required, the provider
of the injured employee shall be entitled to receive a fee from the
employer, or carrier, in an amount to be fixed by the board in addition
to any fee payable under section eight thousand one of the civil
practice law and rules.
* NB Effective January 1, 2028
Payment of bills for medical care. (1) Within forty-five days
after a bill for medical care or supplies delivered pursuant to section
thirteen of this article has been rendered to the employer, such
employer must pay the bill or notify the medical care provider or
supplier in the format prescribed by the chair that the bill is not
being paid and explain the reasons for non-payment. In the event that
the employer fails to make payment or notify the medical care provider
or supplier within such forty-five day period that payment is not being
made, the medical care provider or supplier may notify the board in the
format prescribed by the chair that the bill has not been paid and
request that the board make an award for payment of such bill. The board
or the chair may make an award not in excess of the established fee
schedules for any such bill or part thereof which remains unpaid after
said forty-five day period or thirty days after all other questions duly
and timely raised in accordance with the provisions of this chapter,
relating to the employer's liability for the payment of such amount,
shall have been finally determined adversely to the employer, whichever
is later, in accordance with rules promulgated by the chair, and such
award may be collected in like manner as an award of compensation. The
chair shall assess the sum of fifty dollars against the employer for
each such award made by the board, which sum shall be paid into the
state treasury.
In the event that the employer has provided an explanation in writing
why the bill has not been paid, in part or in full, within the aforesaid
time period, and the parties can not agree as to the value of medical
aid rendered under this chapter, such value shall be decided by
arbitration as set forth in rules and regulations promulgated by the
chair.
Where a bill for medical care or supplies has been determined to be
due and owing in accordance with the provisions of this section the
board shall include in the amount of the award interest of not more than
one and one-half percent (1 1/2%) per month payable to the medical care
provider or supplier, in accordance with the rules and regulations
promulgated by the board. Interest shall be calculated from the
forty-fifth day after the bill was rendered or from the thirtieth day
after all other questions duly and timely raised in accordance with the
provisions of this chapter, relating to the employer's liability for the
payment of such amount, shall have been finally determined adversely to
the employer, whichever is later, in accordance with rules promulgated
by the chair.
(2) If the parties fail to agree to the value of medical aid rendered
under this chapter, such value shall be decided by a single arbitrator
process, pursuant to rules promulgated by the chair. The chair shall
appoint a physician who is a member in good standing of the medical
society of the state of New York to determine the value of such disputed
medical bill. Where the physician whose charges are being arbitrated is
a member in good standing of the New York osteopathic society, the value
of such disputed bill shall be determined by a member in good standing
of the New York osteopathic society appointed by the chair. Where the
physician whose charges are being arbitrated is a member in good
standing of the New York homeopathic society, the value of such disputed
bill shall be determined by a member in good standing of the New York
homeopathic society appointed by the chair. Where the value of any other
authorized provider's services are at issue, such value shall be
determined by a member in good standing of one or more recognized
professional associations representing its respective profession in the
state of New York appointed by the chair. Decisions rendered under the
single arbitrator process shall be conclusive upon the parties as to the
value of the services in dispute.
(3) A provider or supplier initiating a single arbitrator process,
pursuant to this section shall not pay a fee to cover the costs related
to the conduct of such arbitration. (4) In claims where the employer has
failed to secure compensation to his employees as required by section
fifty of this chapter, the board may make an award for the value of
medical services, supplies or treatment rendered to such employees, in
accordance with the schedules of fees and charges prepared and
established under the provisions of this chapter. Such award shall be
made to the medical care provider or supplier entitled thereto. A
default in the payment of such award may be enforced in the manner
provided for the enforcement of compensation awards as set forth in
section twenty-six of this article.
In all cases coming under this subdivision the payment of the claim
for medical care or supplies shall be subordinate to that of the
claimant or his or her beneficiaries.
Ombudsman for injured workers. 1. The office of ombudsman for
injured workers is created within the workers' compensation board. The
ombudsman shall report directly to the chair. The ombudsman shall act as
an advocate for injured workers by accepting complaints concerning
matters related to workers' compensation, investigating them and
attempting to resolve them. The ombudsman shall also provide information
to injured workers to enable them to protect their rights in the
workers' compensation system.
2. The office of ombudsman for small business is created within the
workers' compensation board. The ombudsman shall report directly to the
chair. The ombudsman shall provide information and assistance to small
businesses with regard to workers' compensation insurance and claim
processing matters.
Solicitation prohibited. Any person who shall make it a
business to solicit employment for any person authorized by this chapter
to render medical care to an injured employee in connection with any
claim under this chapter, shall be guilty of a misdemeanor, except that
the employer shall have the right subject to regulations prescribed by
the chairman, to recommend to the injured employee the names of enrolled
physicians who he believes to be competent to treat him.
Medical or surgical treatment by insurance carriers and
employers. (1) An insurance carrier shall not participate in the
treatment of injured workers, except as provided in paragraph five of
subdivision (i) of section thirteen of this article and subdivision
seven of section thirteen-a of this article and except, that it may
employ medical inspectors to examine compensation cases periodically,
while under treatment, and report upon the adequacy of medical care, and
other matters relative to the medical conduct of the case, a copy of
which report shall be filed directly with the chair within ten days, and
that it may maintain rehabilitation bureaus operated by qualified
physicians if authorized by the chair in accordance with section
thirteen-c of this article. (2) An employer may maintain a compensation
medical bureau at the place or places of employment, if such bureau is
required because of the nature of the industrial hazards, or the
frequency of injuries to employees arising out of industry. Such bureau
or bureaus shall be authorized and licensed pursuant to section
thirteen-c, and their use by an injured employee shall be optional in
accordance with the provisions of section thirteen-a.
* § 13-k. Care and treatment of injured employees by duly licensed
podiatrists. 1. When the term "chairman" is hereinafter used, it shall
be deemed to mean the chair of the workers' compensation board of the
state of New York.
2. An employee injured under circumstances which make such injury
compensable under this article, when care is required for an injury to
the foot which injury or resultant condition therefrom may lawfully be
treated by a duly registered and licensed podiatrist of the state of New
York, may select to treat him or her any podiatrist authorized by the
chair to render podiatric medical care, as hereinafter provided. If the
injury or condition is one which is without the limits prescribed by the
education law for podiatric medical care and treatment, or the injuries
involved affect other parts of the body in addition to the foot, the
said podiatrist must so advise the said injured employee and instruct
him or her to consult a physician of said employee's choice for
appropriate care and treatment. Such physician shall thenceforth have
overall supervision of the treatment of said patient including the
future treatment to be administered to the patient by the podiatrist. If
for any reason during the period when podiatric medical treatment and
care is required, the employee wishes to transfer his or her treatment
and care to another authorized podiatrist he or she may do so, in
accordance with rules prescribed by the chair, provided however that the
employer shall be liable for the proper fees of the original podiatrist
for the care and treatment he or she shall have rendered. The chair
shall prepare and establish a schedule for the state, or schedules
limited to defined localities, of charges and fees for podiatric medical
treatment and care, to be determined in accordance with and to be
subject to change pursuant to rules promulgated by the chair. Before
preparing such schedule for the state or schedules for limited
localities the chair shall request the podiatric medicine practice
committee to submit to him or her a report on the amount of remuneration
deemed by such committee to be fair and adequate for the types of
podiatric medical care to be rendered under this chapter, but
consideration shall be given to the view of other interested parties.
The amounts payable by the employer for such treatment and services
shall be the fees and charges established by such schedule.
3. (a) No claim for podiatry care or treatment shall be valid and
enforceable as against the employer or employee unless within
forty-eight hours following the first treatment the podiatrist giving
such care or treatment furnish to the employer and directly to the chair
a preliminary notice of such injury and treatment, within fifteen days
thereafter a more complete report and subsequent thereto progress
reports as requested in writing by the chair, board, employer or
insurance carrier, at intervals of not less than three weeks apart or at
less frequent intervals if requested on forms prescribed by the chair.
The board may excuse the failure to give such notices within the
designated periods when it finds it to be in the interest of justice to
do so.
(b) Upon receipt of the notice provided for by paragraph (a) of this
subdivision, the employer, the carrier and the claimant each shall be
entitled to have the claimant examined by a qualified podiatrist
authorized by the chair in accordance with section thirteen-b and
section one hundred thirty-seven of this chapter, at a medical facility
convenient to the claimant and in the presence of the claimant's
podiatrist, and refusal by the claimant to submit to such independent
medical examination at such time or times as may reasonably be necessary
in the opinion of the board shall bar the claimant from recovering
compensation for any period during which he or she has refused to submit
to such examination.
(c) Where it would place an unreasonable burden upon the employer or
carrier to arrange for, or for the claimant to attend, an independent
medical examination by an authorized podiatrist, the employer or carrier
shall arrange for such examination to be performed by a qualified
podiatrist in a medical facility convenient to the claimant.
(d) The independent podiatric examiner shall provide such reports and
shall submit to investigation as required by the chair.
(e) In order to qualify as admissible medical evidence, for purposes
of adjudicating any claim under this chapter, any report submitted to
the board by an independent podiatric examiner licensed by the state of
New York shall include the following:
(i) a signed statement certifying that the report is a full and
truthful representation of the independent podiatric examiner's
professional opinion with respect to the claimant's condition,
(ii) such examiner's board issued authorization number,
(iii) the name of the individual or entity requesting the examination,
(iv) if applicable, the registration number as required by section
thirteen-n of this article, and
(v) such other information as the chair may require by regulation.
4. Fees for podiatry services shall be payable only to a duly
authorized podiatrist as defined in this section or to the agent,
executor or administrator of the estate of such podiatrist. No
podiatrist rendering treatment to a compensation claimant, shall collect
or receive a fee from such claimant within this state, but shall have
recourse for payment of services rendered only to the employer under the
provisions of this section.
5. Whenever his attendance at a hearing is required, the podiatrist of
the injured employee shall be entitled to receive a fee from the
employer in an amount to be fixed by the board, in addition to any fee
payable under section eight thousand one of the civil practice law and
rules.
6. (a) The provisions of subdivisions one and three of section
thirteen-g of this article with respect to the conditions under which a
hospital, physician or self-employed physical or occupational therapist
may request payment or arbitration of a bill, or under which an award
may be made for payment of such bill, shall be applicable to bills
rendered by a podiatrist for services rendered to an injured employee.
(b) If the parties fail to agree as to the value of podiatry care
rendered under this chapter to a claimant, and the amount of the
disputed bill is one thousand dollars or less, or where the amount of
the disputed bill exceeds one thousand dollars and the podiatrist
expressly so requests, such value shall be decided by a single
arbitrator process, pursuant to rules promulgated by the chair. The
chair shall appoint a member in good standing of a recognized
professional association representing podiatrists in the state of New
York to determine the value of such disputed bill. Decisions rendered
under the single arbitrator process shall be conclusive upon the parties
as to the value of the services in dispute.
(c) If the parties fail to agree as to the value of podiatry care
rendered under this chapter to a claimant and the amount of the disputed
bill exceeds one thousand dollars and the podiatrist does not expressly
request a single arbitrator process in accordance with paragraph (b) of
this subdivision, such value shall be decided by an arbitration
committee consisting of three duly registered and licensed podiatrists
who are members of a recognized professional association representing
podiatrists in the state of New York, one to be appointed by the
president of such an association, one to be appointed by the employer or
carrier and one to be appointed by the chair of the workers'
compensation board and the majority decision of such committee shall be
conclusive upon the parties as to the value of the services rendered.
(d) The board or the chair may make an award not in excess of the
established fee schedules for any such bill or part thereof which
remains unpaid in the same manner as an award for bills rendered under
subdivisions one and three of section thirteen-g of this article, and
such award may be collected in like manner as an award of compensation.
Where a podiatrist's bill has been determined to be due and owing in
accordance with the provisions of this section the board shall include
in the amount of the award interest of not more than one and one-half
percent (1 1/2%) per month payable to the podiatrist in accordance with
the rules and regulations promulgated by the board. The chair shall
assess the sum of fifty dollars against the employer for each such award
made by the board, which sum shall be paid into the state treasury.
(e) A provider initiating an arbitration, including a single
arbitration process, pursuant to this section shall not be required to
pay a fee related to the conduct of such arbitration. Each member of the
arbitration committee shall be entitled to receive and shall be paid a
fee for each day's attendance at an arbitration session in an amount
fixed by the chair of the workers' compensation board.
7. Within the limits prescribed by the education law for podiatry care
and treatment, the report or testimony of an authorized podiatrist
concerning the condition of the foot of an injured employee and the
treatment thereof shall be deemed competent evidence and the
professional opinion of the podiatrist as to causal relation and as to
required treatment shall be deemed competent but shall not be
controlling. Nothing in this section shall be deemed to deprive any
employer or insurance carrier of any right to medical examination or
presentation of medical testimony now conferred by law.
8. The chairman shall promulgate rules governing the procedure to be
followed by those rendering podiatry care under this section, which
rules so far as practicable shall conform to the rules presently in
effect with reference to medical care furnished to claimants in
workmen's compensation. In connection with the promulgation of said
rules the chairman may consult the podiatry practice committee
hereinafter provided and may take into consideration the view of other
interested parties.
9. The chairman shall appoint for and with jurisdiction in the entire
state of New York a single podiatry practice committee composed of one
duly licensed physician and two duly registered and licensed podiatrists
of the state of New York. Each podiatry member of said committee shall
have been engaged in the practice of podiatry as a duly registered and
licensed podiatrist of the state of New York at least ten years prior to
the time of his appointment and shall receive compensation either on an
annual basis or on a per diem basis to be fixed by the chairman within
amounts appropriated therefor. One of said members shall be designated
by the chairman as chairman of said podiatry practice committee. No
member of said committee shall render podiatry treatment under this
section nor be employed by or accept or participate in any fee from any
insurance company authorized to write workmen's compensation insurance
in this state or from any self-insurer, whether such employment or fee
relates to a workmen's compensation claim or otherwise. The attorney
general, upon request, shall advise and assist such committee.
10. The podiatry practice committee shall investigate, hear and make
findings with respect to all charges as to professional or other
misconduct of any authorized podiatrist as herein provided under rules
and procedures to be prescribed by the chair and shall report evidence
of such misconduct, with their findings and recommendation with respect
thereto, to the chair. The findings, decision and recommendation of such
podiatry practice committee shall be advisory to the chair only, and
shall not be binding or conclusive upon him or her. The chair shall
remove from the list of podiatrists authorized to render podiatry care
under this chapter or to conduct independent medical examinations in
accordance with paragraph (b) of subdivision three of this section the
name of any podiatrist who he or she shall find after reasonable
investigation is disqualified because such podiatrist
(a) has been guilty of professional or other misconduct or
incompetency in connection with podiatry services rendered under the
law; or
(b) has exceeded the limits of his or her professional competence in
rendering podiatry care under the law, or has made materially false
statements regarding his or her qualifications in his or her application
for authorization; or
(c) has failed to submit timely, full and truthful podiatry reports of
all his or her findings to the employer and directly to the chair or the
board within the time limits provided in this section; or
(d) has knowingly made a false statement or presentation as to a
material fact in any medical report made pursuant to this chapter or in
testifying or otherwise providing information for the purposes of this
chapter; or
(e) has solicited or has employed another to solicit for himself or
herself or for another professional treatment, examination or care of an
injured employee with any claim under this chapter; or
(f) has refused to appear before, to testify, to submit to a
deposition, or to answer upon request of, the chair, board, podiatry
practice committee or any duly authorized officer of the state, any
legal question or produce any relevant book or paper concerning his or
her conduct under an authorization granted to him or her under the law,
or
(g) has directly or indirectly requested, received or participated in
the division, transference, assignment, rebating, splitting or refunding
of a fee for, or has directly or indirectly requested, received or
profited by means of a credit or other valuable consideration as a
commission, discount or gratuity in connection with the treatment, or
independent medical examination, of a workers' compensation claimant.
Nothing contained in this paragraph shall prohibit such podiatrists who
practice as partners, in groups or as a professional corporation from
pooling fees and moneys received, either by the partnership,
professional corporation or group by the individual members thereof, for
professional services furnished by any individual professional member,
or employee of such partnership, corporation or group, nor shall the
professionals constituting the partnership, corporation, or group be
prohibited from sharing, dividing or apportioning the fees and moneys
received by them or by the partnership, corporation or group in
accordance with a partnership or other agreement.
11. Any person who violates or attempts to violate, and any person who
aids another to violate or attempts to induce him to violate the
provisions of paragraph g of subdivision ten of this section shall be
guilty of a misdemeanor.
12. Nothing in this section shall be construed as limiting in any
respect the power or duty of the chairman to investigate instances of
misconduct, either before or after investigation by the podiatry
practice committee or to temporarily suspend the authorization of any
podiatrist that he may believe to be guilty of such misconduct. The
provisions of subdivision one of section thirteen-d of this article
which are not inconsistent with the provisions of this section shall be
applicable as fully as if set forth herein.
13. Upon the referral which may be directive as to treatment of an
authorized podiatrist physical therapy care may be rendered by a duly
licensed physical therapist.
* NB Repealed January 1, 2028
* § 13-l. Care and treatment of injured employees by duly licensed
chiropractors. 1. Where the term "chairman" is hereinafter used, it
shall be deemed to mean the chair of the workers' compensation board of
the state of New York.
2. An employee injured under circumstances which make such injury
compensable under this article, when care is required for an injury
which consists solely of a condition which may lawfully be treated by a
chiropractor as defined in section sixty-five hundred fifty-one of the
education law may select to treat him or her, any duly registered and
licensed chiropractor of the state of New York, authorized by the chair
to render chiropractic care as hereinafter provided. If the injury or
condition is one which is outside the limits prescribed by the education
law for chiropractic care and treatment, the said chiropractor must so
advise the said injured employee and instruct him or her to consult a
physician of said employee's choice for appropriate care and treatment.
Such physician shall thenceforth have supervision of the treatment of
said condition including the future treatment to be administered to the
patient by the chiropractor. The chair shall prepare and establish a
schedule for the state, or schedules limited to defined localities of
charges and fees for chiropractic treatment and care, to be determined
in accordance with and to be subject to change pursuant to rules
promulgated by the chair. Before preparing such schedule for the state
or schedules for limited localities the chair shall request the
chiropractic practice committee to submit to him or her a report on the
amount of remuneration deemed by such committee to be fair and adequate
for the types of chiropractic care to be rendered under this chapter,
but consideration shall be given to the view of other interested
parties, the amounts payable by the employer for such treatment and
services shall be the fees and charges established by such schedule.
3. (a) No claim for chiropractic care or treatment shall be valid and
enforceable as against the employer or employees unless within
forty-eight hours following the first treatment the chiropractor giving
such care or treatment furnishes to the employer and directly to the
chair a preliminary notice of such injury and treatment, and within
fifteen days thereafter a more complete report and subsequent thereto
progress reports as requested in writing by the chair, board, employer
or insurance carrier, at intervals of not less than three weeks apart or
at less frequent intervals if requested on forms prescribed by the
chair. The board may excuse the failure to give such notices within the
designated periods when it finds it to be in the interest of justice to
do so.
(b) Upon receipt of the notice provided for by paragraph (a) of this
subdivision, the employer, the carrier, and the claimant each shall be
entitled to have the claimant examined by a qualified chiropractor
authorized by the chair in accordance with section thirteen-b and
section one hundred thirty-seven of this chapter at a medical facility
convenient to the claimant and in the presence of the claimant's
chiropractor, and refusal by the claimant to submit to such independent
medical examination at such time or times as may reasonably be necessary
in the opinion of the board shall bar the claimant from recovering
compensation, for any period during which he or she has refused to
submit to such examination.
(c) Where it would place an unreasonable burden upon the employer or
carrier to arrange for, or for the claimant to attend, an independent
medical examination by an authorized chiropractor, the employer or
carrier shall arrange for such examination to be performed by a
qualified chiropractor in a medical facility convenient to the claimant.
(d) The independent chiropractic examiner shall provide such reports
and shall submit to investigation as required by the chair.
(e) In order to qualify as admissible chiropractic evidence, for
purposes of adjudicating any claim under this chapter, any report
submitted to the board by an independent medical examiner licensed by
the state of New York shall include the following:
(i) a signed statement certifying that the report is a full and
truthful representation of the independent chiropractic examiner's
professional opinion with respect to the claimant's condition,
(ii) such examiner's board issued authorization number,
(iii) the name of the individual or entity requesting the examination,
(iv) if applicable, the registration number as required by section
thirteen-n of this article, and
(v) such other information as the chair may require by regulation.
4. Fees for chiropractic services shall be payable only to a duly
authorized chiropractor as defined in this section, or to the agent,
executor or administrator of the estate of such chiropractor. No
chiropractor rendering treatment to a compensation claimant shall
collect or receive a fee from such claimant within this state, but shall
have recourse for payment of services rendered only to the employer
under the provisions of this section.
5. Whenever his attendance at a hearing is required the chiropractor
of the injured employee shall be entitled to receive a fee from the
employer in an amount to be fixed by the board, in addition to any fee
payable under section eight thousand and one of the civil practice law
and rules.
6. (a) The provisions of subdivisions one and three of section
thirteen-g of this article with respect to the conditions under which a
hospital, physician or self-employed physical or occupational therapist
may request payment or arbitration of a bill, or under which an award
may be made for payment of such bill, shall be applicable to bills
rendered by a chiropractor for services rendered to an injured employee.
(b) If the parties fail to agree as to the chiropractic care rendered
under this chapter to a claimant, and the amount of the disputed bill is
one thousand dollars or less, or where the amount of the disputed bill
exceeds one thousand dollars and the chiropractor expressly so requests,
such value shall be decided by a single arbitrator process, pursuant to
rules promulgated by the chair. The chair shall appoint a member in good
standing of a recognized professional association representing
chiropractors in the state of New York to determine the value of such
disputed bill. Decisions rendered under the single arbitrator process
shall be conclusive upon the parties as to the value of the services in
dispute.
(c) If the parties fail to agree as to the chiropractic care rendered
under this chapter to a claimant, and the amount of the disputed bill
exceeds one thousand dollars and the chiropractor does not expressly
request a single arbitrator process in accordance with paragraph (b) of
this subdivision, such value shall be decided by the chiropractic
practice committee and the majority decision of such committee shall be
conclusive upon the parties as to the value of the services rendered.
(d) The board or the chair may make an award not in excess of the
established fee schedules for any such bill or part thereof which
remains unpaid in the same manner as an award for bills rendered under
subdivisions one and three of section thirteen-g of this article, and
such award may be collected in like manner as an award of compensation.
Where a chiropractor's bill has been determined to be due and owing in
accordance with the provisions of this section the board shall include
in the amount of the award interest of not more than one and one-half
percent (1 1/2%) per month payable to the chiropractor in accordance
with the rules and regulations promulgated by the board. The chair shall
assess the sum of fifty dollars against the employer for each such award
made by the board, which sum shall be paid into the state treasury.
(e) A provider initiating an arbitration, including a single
arbitrator process, pursuant to this section shall not pay a fee to
cover the costs related to the conduct of such arbitration.
7. Within the limits prescribed by the education law for chiropractic
care and treatment, the report or testimony of an authorized
chiropractor concerning the condition of an injured employee and
treatment thereof shall be deemed competent evidence and the
professional opinion of the chiropractor as to causal relation and as to
required treatment shall be deemed competent but shall not be
controlling. Nothing in this section shall be deemed to deprive any
employer or insurance carrier of any right to medical examination or
presentation of medical testimony now conferred by law.
8. The chairman shall promulgate rules governing the procedure to be
followed by those rendering chiropractic care under this section, which
rules so far as practicable shall conform to the rules presently in
effect with reference to medical care furnished to claimants in
workmen's compensation. In connection with the promulgation of said
rules the chairman may consult the chiropractic practice committee
hereinafter provided and may take into consideration the view of other
interested parties.
9. The chair shall appoint for and with jurisdiction in the entire
state of New York a single chiropractic practice committee composed of
three duly registered and licensed chiropractors of the state of New
York. Each member of said committee shall receive compensation either
on an annual basis or on a per diem basis to be fixed by the chair
within amounts appropriated therefor. One of said chiropractic members
shall be designated by the chair as a chair of said chiropractic
practice committee. No member of said committee shall render
chiropractic treatment under this section nor be employed or accept or
participate in any fee from any insurance company authorized to write
workers' compensation insurance in this state or from any self-insurer,
whether such employment or fee relates to a workers' compensation claim
or otherwise. The attorney general, upon request, shall advise and
assist such committee.
10. The chiropractic practice committee shall investigate, hear and
make findings with respect to all charges as to professional or other
misconduct of any authorized chiropractor as herein provided under rules
and procedure to be prescribed by the chair and shall report evidence of
such misconduct, with their findings and recommendations with respect
thereto, to the chair. The findings, decision and recommendation of such
chiropractic practice committee shall be advisory to the chair only, and
shall not be binding or conclusive upon him or her. The chair shall
remove from the list of chiropractors authorized to render chiropractic
care under this chapter or to conduct independent medical examinations
in accordance with paragraph (b) of subdivision three of this section
the name of any chiropractor who he or she shall find after reasonable
investigation is disqualified because such chiropractor,
(a) has been guilty of professional or other misconduct or
incompetency in connection with chiropractic services rendered under the
law, or
(b) has exceeded the limits of his or her professional competence in
rendering chiropractic services under the law, or has made false
statements regarding his or her qualifications in his or her application
for authorization, or
(c) has failed to submit timely, full and truthful chiropractic
reports of all his or her findings to the employer and directly to the
chair of the board within the time limits provided in this section, or
(d) has knowingly made a false statement or representation as to a
material fact in any medical report made pursuant to this chapter or in
testifying or otherwise providing information for the purposes of this
chapter, or
(e) has solicited or has employed another to solicit for himself or
herself or for another professional treatment, examination or care of an
injured employee with any claim under this chapter, or
(f) has refused to appear before, to testify, to submit to a
deposition, or answer upon request of the chair, board, chiropractic
practice committee or any duly authorized officer of the state, any
legal question or produce any relevant book or paper concerning his or
her conduct under an authorization granted to him or her under the law,
or
(g) has directly or indirectly requested, received or participated in
the division, transference, assignment, rebating, splitting or refunding
of a fee for, or has directly or indirectly requested, received or
profited by means of a credit or otherwise valuable consideration as a
commission, discount or gratuity, in connection with the treatment, or
independent medical examination, of a workers' compensation claimant.
Nothing contained in this paragraph shall prohibit such chiropractors
who practice as partners, in groups or as a professional corporation, or
as a university faculty practice corporation from pooling fees and
moneys received, either by the partnership, professional corporation,
university faculty practice corporation or group by the individual
members thereof, for professional services furnished by any individual
professional member, or employee of such partnership, corporation or
group, nor shall the professionals constituting the partnership,
corporation, or group be prohibited from sharing, dividing or
apportioning the fees and moneys received by them or by the partnership,
corporation or group in accordance with a partnership or other
agreement.
11. Any person who violates or attempts to violate, and any person who
aids another to violate or attempts to induce him to violate the
provisions of paragraph (g) of subdivision ten of this section shall be
guilty of a misdemeanor.
12. Nothing in this section shall be construed as limiting in any
respect the power or duty of the chairman to investigate instances of
misconduct, either before or after investigation by the chiropractic
practice committee or to temporarily suspend the authorization of any
chiropractor that he may believe to be guilty of such misconduct. The
provisions of subdivision one of section thirteen-d of this article
which are not inconsistent with the provisions of this section shall be
applicable as fully as if set forth herein.
* NB Repealed January 1, 2028
* § 13-m. Care and treatment of injured employees by duly licensed
psychologists. 1. Where the term "chairman" is hereinafter used, it
shall be deemed to mean the chair of the workers' compensation board of
the state of New York.
2. (a) An injured employee, injured under circumstances which make
such injury compensable under this article, may lawfully be treated by a
psychologist, duly registered and licensed by the state of New York,
authorized by the chair to render psychological care pursuant to section
thirteen-b of this article. Such services shall be within the scope of
such psychologist's specialized training and qualifications as defined
in article one hundred fifty-three of the education law.
(b) Medical bureaus, medical centers jointly operated by labor and
management representatives, hospitals and health maintenance
organizations, authorized to provide medical care pursuant to section
thirteen-c of this article, may provide psychological services when
required.
(c) A psychologist rendering service pursuant to this section shall
maintain records of the patient's psychological condition and treatment,
and such records or reports shall be submitted to the chair on such
forms and at such times as the chair may require.
3. The chair shall prepare and establish a schedule for the state or
schedules limited to defined localities of charges and fees for
psychological treatment and care, to be determined in accordance with
and be subject to change pursuant to rules promulgated by the chair.
Before preparing such schedule for the state or schedules for limited
localities the chair shall request the psychology practice committee to
submit to such chair a report on the amount of remuneration deemed by
such committee to be fair and adequate for the types of psychological
care to be rendered under this chapter, but consideration shall be given
to the view of other interested parties. The amounts payable by the
employer for such treatment and services shall be the fees and charges
established by such schedule.
4. (a) No claim for psychological care or treatment shall be valid and
enforceable as against the employer or employees unless within
forty-eight hours following the first treatment the psychologist giving
such care or treatment furnishes to the employer and directly to the
chair a preliminary notice of such injury and treatment, and within
fifteen days thereafter a more complete report and subsequent thereto
progress reports as requested in writing by the chair, board, employer
or insurance carrier, at intervals of not less than three weeks apart or
at less frequent intervals if requested on forms prescribed by the
chair. The board may excuse the failure to give such notices within the
designated periods when it finds it to be in the interest of justice to
do so.
(b) Upon receipt of the notice provided for by paragraph (a) of this
subdivision, the employer, the carrier, and the claimant each shall be
entitled to have the claimant examined by a qualified psychologist,
authorized by the chair in accordance with section thirteen-b and
section one hundred thirty-seven of this chapter, at a medical facility
convenient to the claimant and in the presence of the claimant's
psychologist, and refusal by the claimant to submit to such independent
medical examination at such time or times as may reasonably be necessary
in the opinion of the board shall bar the claimant from recovering
compensation, for any period during which he or she has refused to
submit to such examination.
(c) Where it would place an unreasonable burden upon the employer or
carrier to arrange for, or for the claimant to attend, an independent
medical examination by an authorized psychologist, the employer or
carrier shall arrange for such examination to be performed by a
qualified psychologist in a medical facility convenient to the claimant.
(d) The independent psychological examiner licensed by the state of
New York shall provide such reports and shall submit to investigation as
required by the chair.
(e) In order to qualify as admissible medical evidence, for purposes
of adjudicating any claim under this chapter, any report submitted to
the board by an independent psychological examiner licensed by the state
of New York shall include the following:
(i) a signed statement certifying that the report is a full and
truthful representation of the independent psychological examiner's
professional opinion with respect to the claimant's condition,
(ii) such examiner's board issued authorization number,
(iii) the name of the individual or entity requesting the examination,
(iv) if applicable, the registration number as required by section
thirteen-n of this article, and
(v) such other information as the chair may require by regulation.
5. Fees for psychological services shall be payable only to a duly
authorized psychologist as licensed in article one hundred fifty-three
of the education law, or to the agent, executor or administrator of the
estate of such psychologist. No psychologist rendering treatment to a
compensation claimant shall collect or receive a fee from such claimant
within this state, but shall have recourse for payment of services
rendered only to the employer under the provisions of this section.
6. Whenever his attendance at a hearing is required the psychologist
of the injured employee shall be entitled to receive a fee from the
employer in an amount to be fixed by the board, in addition to any fee
payable under section eight thousand one of the civil practice law and
rules.
7. (a) The provisions of subdivisions one and three of section
thirteen-g of this article with respect to the conditions under which a
hospital, physician or self-employed physical or occupational therapist
may request payment or arbitration of a bill, or under which an award
may be made for payment of such bill, shall be applicable to bills
rendered by a psychologist for services rendered to an injured employee.
(b) If the parties fail to agree as to the psychological care rendered
under this chapter to a claimant, and the amount of the disputed bill is
one thousand dollars or less, or where the amount of the disputed bill
exceeds one thousand dollars and the psychologist expressly so requests,
such value shall be decided by a single arbitrator process, pursuant to
rules promulgated by the chair. The chair shall appoint a member in good
standing of a recognized professional association representing
psychologists in the state of New York to determine the value of such
disputed bill. Decisions rendered under the single arbitrator process
shall be conclusive upon the parties as to the value of the services in
dispute.
(c) If the parties fail to agree as to the psychological care rendered
under this chapter to a claimant, and the amount of the disputed bill
exceeds one thousand dollars and the psychologist does not expressly
request a single arbitrator process in accordance with paragraph (b) of
this subdivision, such value shall be decided by the psychology practice
committee and the majority decision of such committee shall be
conclusive upon the parties as to the value of the services rendered.
(d) The board or the chair may make an award not in excess of the
established fee schedules for any such bill or part thereof which
remains unpaid in the same manner as an award for bills rendered under
subdivisions one and three of section thirteen-g of this article, and
such award may be collected in like manner as an award of compensation.
The chair shall assess the sum of fifty dollars against the employer for
each such award made by the board, which sum shall be paid into the
state treasury. Where a psychologist's bill has been determined to be
due and owing in accordance with the provisions of this section the
board shall include in the amount of the award interest of not more than
one and one-half percent per month payable to the psychologist in
accordance with the rules and regulations promulgated by the board.
(e) A provider initiating an arbitration, including a single
arbitrator process, pursuant to this section shall not be required to
pay a fee to cover the costs related to the conduct of such arbitration.
8. Within the limits prescribed by the education law for psychological
care and treatment, the report or testimony of an authorized
psychologist concerning the condition of an injured employee and
treatment thereof shall be deemed competent evidence and the
professional opinion of the psychologist as to causal relation and as to
required treatment shall be deemed competent but shall not be
controlling. Nothing in this section shall be deemed to deprive any
employer or insurance carrier of any right to a medical examination or
presentation of medical testimony now conferred by law.
9. The chairman shall promulgate rules governing the procedure to be
followed by those rendering psychological care under this section, which
rules so far as practicable shall conform to the rules presently in
effect with reference to medical care furnished to claimants in workers'
compensation. In connection with the promulgation of said rules the
chairman may consult the psychology practice committee hereinafter
provided and may take into consideration the view of other interested
parties.
10. The chair shall appoint for and with jurisdiction in the entire
state of New York a single psychology practice committee composed of
three duly registered and licensed psychologists, at least one of whom
shall be a member in good standing of the New York state psychological
association recommended by the president of such organization. Each
member of said committee shall receive compensation either on an annual
basis or on a per diem basis to be fixed by the chair within amounts
appropriated therefor. One of said psychologists shall be designated by
the chair as a chair of said psychology practice committee. No member of
said committee shall render psychological treatment under this section
nor be an employer or accept or participate in any fee from any
insurance company authorized to write workers' compensation insurance in
this state or from any self-insurer, whether such employment or fee
relates to a workers' compensation claim or otherwise. The attorney
general, upon request, shall advise and assist such committee.
11. The psychology practice committee shall investigate, hear and make
findings with respect to all charges as to professional or other
misconduct of any authorized psychologist as herein provided under rules
and procedures to be prescribed by the chair and shall report evidence
of such misconduct, with their findings and recommendations with respect
thereto, to the chair. The findings, decision and recommendation of such
psychology practice committee shall be advisory to the chair only, and
shall not be binding or conclusive upon him or her. The chair shall
remove from the list of psychologists authorized to render psychological
care under this chapter or to conduct independent medical examinations
in accordance with paragraph (b) of subdivision four of this section the
name of any psychologist who he or she shall find after reasonable
investigation is disqualified because such psychologist:
(a) has been guilty of professional or other misconduct or
incompetency in connection with the rendering of psychological services,
or
(b) has exceeded the limits of his or her professional competence in
rendering psychological services under the law, or has made false
statements regarding qualifications in the application for
authorization, or
(c) has failed to submit timely, full and truthful psychological
reports of all findings to the employer and directly to the chair of the
board within the time limits provided in this section, or
(d) has knowingly made a false statement or representation as to a
material fact in any medical report made pursuant to this chapter or in
testifying or otherwise providing information for the purposes of this
chapter, or
(e) has solicited or has employed another to solicit for
himself/herself or for another professional treatment, examination or
care of an injured employee with any claim under this chapter, or
(f) has refused to appear before, to testify, to submit to a
deposition, or answer upon request of the chair, board, psychology
practice committee or any duly authorized officer of the state, any
legal question or produce any relevant book or paper concerning conduct
under an authorization granted under law, or
(g) has directly or indirectly requested, received or participated in
the division, transference, assignment, rebating, splitting or refunding
of a fee for, or has directly or indirectly requested, received or
profited by means of a credit or otherwise valuable consideration as a
commission, discount or gratuity in connection with the treatment of a
workers' compensation claimant.
12. Any person who violates or attempts to violate, and any person who
aids another to violate or attempts to induce him to violate the
provisions of paragraph (g) of subdivision eleven of this section shall
be guilty of a misdemeanor.
13. Nothing in this section shall be construed as limiting in any
respect the power or duty of the chairman to investigate instances of
misconduct, either before or after investigation by the psychology
practice committee, or to temporarily suspend the authorization of any
psychologist believed to be guilty of such misconduct. The provisions of
subdivision one of section thirteen-d of this article which are not
inconsistent with the provisions of this section shall be applicable as
if fully set forth herein.
14. Nothing contained in this section shall prohibit psychologists who
practice as partners, in groups or as a professional corporation from
pooling fees and moneys received, either by the partnership,
professional corporation or group or by the individual members thereof,
for professional services furnished by any individual professional
member, or employee of such partnership, corporation or group, nor shall
the professionals constituting the partnerships, corporations, or groups
be prohibited from sharing, dividing or apportioning the fees and moneys
received by them or by the partnership, corporation or group in
accordance with a partnership or other agreement.
* NB Repealed January 1, 2028
Mandatory registration of entities which derive income from
independent medical examinations.
* 1. Any entity which derives income from independent medical
examinations performed in accordance with subdivision four of section
thirteen-a, subdivision three of section thirteen-k, subdivision three
of section thirteen-1 and subdivision four of section thirteen-m of this
article, whether by employing or contracting with independent examiners
to conduct such independent medical examinations or by acting as a
referral service or otherwise facilitating such examinations, shall
register with the chair by filing a statement of registration containing
such information prescribed by the chair in regulation. A fee may be
imposed in accordance with regulations promulgated by the chair. Any
such fees collected shall be used for the purpose of administering this
section.
* NB Effective until January 1, 2028
* 1. Any entity which derives income from independent medical
examinations performed in accordance with subdivision four of section
thirteen-a of this article and section one hundred thirty-seven of this
chapter, whether by employing or contracting with independent examiners
to conduct such independent medical examinations or by acting as a
referral service or otherwise facilitating such examinations, shall
register with the chair by filing a statement of registration containing
such information prescribed by the chair in regulation. A fee may be
imposed in accordance with regulations promulgated by the chair. Any
such fees collected shall be used for the purpose of administering this
section.
* NB Effective January 1, 2028
2. The chair shall assign a registration number to the entity upon
registration. If an entity operates under more than one name, or in more
than one location, the chair may assign a series of registration numbers
which would differentiate each such sub-entity. In order to qualify as
admissible medical evidence, for purposes of adjudicating any claim
under this chapter, any report submitted to the board by an independent
medical examiner who is employed by, or has contracted with, an entity
as described in subdivision one of this section for the purpose of
performing independent medical examinations, must include the
registration number of such entity.
3. The chair, upon finding that an entity that derives income from
independent medical examinations has materially altered an independent
medical examination report, or caused such a report to be materially
altered, may revoke the registration of such entity, impose a penalty
not exceeding ten thousand dollars and refer the matter to the attorney
general for prosecution.
Pharmaceutical fee schedule. The chair shall adopt a
pharmaceutical fee schedule which shall establish maximum allowable fees
for prescription medicines provided pursuant to this chapter. The
schedule shall include a single dispensing fee. Nothing in the fee
schedule shall preclude mail order supply of scheduled medicines,
provided that the fees for such mail ordered medicines do not exceed the
costs provided by such fee schedule. Any pharmacy providing prescription
medicines shall provide the generic drug equivalent, if a generic
equivalent is available, unless the prescribing physician specifically
provides otherwise by prescription. The fee schedule may be modified on
each succeeding April first, provided, however, that usual and customary
fees may be charged for drugs that are not included in a then-current
fee schedule, but are approved for use by the chair.
Comprehensive prescription drug formulary. The chair shall
establish a comprehensive prescription drug formulary on or before
December thirty-first, two thousand seventeen. The prescription drug
formulary shall include a tiered list of high-quality, cost-effective
medications that are pre-approved to be prescribed and dispensed, as
well as additional non-preferred drugs that can be prescribed with prior
approval. Such prescription drug formulary, shall include but not be
limited to implementation of a pharmacy reimbursement strategy,
administration of a prescription drug rebate program for formulary
drugs, a pre-approval program, drug utilization review, and limitations
on the prescribing of compounded medications and compounded topical
preparations. The board shall promulgate regulations to permit an
interested party to submit a request to the medical director of the
board to alter or amend the formulary to consider changing the status of
a drug from non-preferred to preferred. Regulations may include a
provision for reasonable costs and fees associated with the review.
Weekly wages basis of compensation. Except as otherwise provided
in this chapter, the average weekly wages of the injured employee at the
time of the injury shall be taken as the basis upon which to compute
compensation or death benefits, and shall be determined as follows:
1. If the injured employee shall have worked in the employment in
which he was working at the time of the accident, whether for the same
employer or not, during substantially the whole of the year immediately
preceding his injury, his average annual earnings shall consist of three
hundred times the average daily wage or salary for a six-day worker, and
two hundred sixty times the average daily wage or salary for a five-day
worker, which he shall have earned in such employment during the days
when so employed;
2. If the injured employee shall not have worked in such employment
during substantially the whole of such year, his average annual
earnings, if a six-day worker, shall consist of three hundred times the
average daily wage or salary, and, if a five-day worker, two hundred and
sixty times the average daily wage or salary, which an employee of the
same class working substantially the whole of such immediately preceding
year in the same or in a similar employment in the same or a neighboring
place shall have earned in such employment during the days when so
employed;
3. If either of the foregoing methods of arriving at the annual
average earnings of an injured employee cannot reasonably and fairly be
applied, such annual average earnings shall be such sum as, having
regard to the previous earnings of the injured employee and of other
employees of the same or most similar class, working in the same or most
similar employment, or other employment as defined in this chapter, in
the same or neighboring locality, shall reasonably represent the annual
earning capacity of the injured employee in the employment in which he
was working at the time of the accident, provided, however, his average
annual earnings shall consist of not less than two hundred times the
average daily wage or salary which he shall have earned in such
employment during the days when so employed, further provided, however,
that if the injured employee shall have been in the military or naval
service of the United States or of the state of New York within twelve
months prior to his injury, and his average annual earnings cannot be
fairly determined under subdivisions one and two, then the average
annual earnings shall be determined by multiplying his average daily
wage during the days so employed by not less than two hundred and forty;
4. The average weekly wages of an employee shall be one-fifty-second
part of his average annual earnings;
5. If it be established that the injured employee was under the age of
twenty-five when injured, and that under normal conditions his wages
would be expected to increase, that fact may be considered in arriving
at his average weekly wages.
6. If the injured employee is concurrently engaged in more than one
employment at the time of injury, the employee's average weekly wages
shall be calculated upon the basis of wages earned from all concurrent
employments covered under this chapter. The employer in whose employment
the employee was injured shall be liable for the benefits that would
have been payable if the employee had had no other employment. Any
additional benefits resulting from the increase in average weekly wages
due to the employee's concurrent employments shall be payable in the
first instance by the employer in whose employment the employee was
injured and shall be reimbursed by the special disability fund created
under subdivision eight of section fifteen of this article, but only if
such claim is presented in accordance with subparagraph two of paragraph
(h) of subdivision eight of section fifteen of this article. The
employer in whose employment the employee was injured shall be liable
for all medical costs.
7. The average weekly wages of a jockey, apprentice jockey or exercise
person licensed under article two or four of the racing, pari-mutuel
wagering and breeding law shall be computed based upon all of the
earnings of such jockey, apprentice jockey or exercise person, including
those derived from outside of the state.
Double compensation and death benefits when minors illegally
employed. 1. Compensation, death benefits, and awards to the
commissioner of taxation and finance in accordance with subdivision nine
of section fifteen and section twenty-five-a, as provided in this
article, shall be double the amount otherwise payable if the injured
employee at the time of the accident is a minor employed, permitted or
suffered to work in violation of any provision of the labor law or in
violation of any rule heretofore or hereafter adopted by the board of
standards and appeals pursuant to subdivision four of section one
hundred thirty-three of said law.
An employer who knowingly permits or suffers a newspaper carrier to
work in violation of section thirty-two hundred twenty-eight of the
education law, shall be liable for the increased awards provided by this
section.
2. The employer alone and not the insurance carrier shall be liable
for the increased compensation, increased death benefits, or awards to
the commissioner of taxation and finance provided for by this section.
Any provision in an insurance policy undertaking to relieve an employer
from such increased liability shall be void.
3. A person over eighteen years of age may apply for a certificate of
age to the superintendent of schools or to an employment certificating
officer. Upon such application a certificate of age, signed by the
officer issuing it and containing the name, date of birth, address and
signature of the applicant shall be issued to him if he furnishes
evidence that he is over eighteen years of age such as is required for
the issuance of an employment certificate. Such a certificate of age
shall be conclusive evidence for an employer that the person has reached
the age certified to therein, and the provisions of this section shall
not apply to the employer of such person while the person is engaged in
employment lawful for the age and sex as certified to in the certificate
of age.
4. With respect to a jockey, apprentice jockey or exercise person
licensed under article two or four of the racing, pari-mutuel wagering
and breeding law, and at the election of the New York Jockey Injury
Compensation Fund, Inc., with the approval of the New York state gaming
commission, an employee of a licensed trainer or owner, who, pursuant to
section two of this chapter, is an employee of all owners and trainers
licensed or required to be licensed under article two or four of the
racing, pari-mutuel wagering and breeding law and The New York Jockey
Injury Compensation Fund, Inc., the owner or trainer for whom such
jockey, apprentice jockey, exercise person or, if approved by the New
York state gaming commission, employee of a licensed trainer or owner
was performing services at the time of the accident shall be solely
responsible for the double payments described in subdivision one of this
section, to the extent that such payments exceed any amounts otherwise
payable with respect to such jockey, apprentice jockey, exercise person
or, if approved by the New York state gaming commission, employee of a
licensed trainer or owner under any other section of this chapter, and
the New York Jockey Injury Compensation Fund, Inc. shall have no
responsibility for such excess payments, unless there shall be a failure
of the responsible owner or trainer to pay such award within the time
provided under this chapter. In the event of such failure to pay and the
board requires the fund to pay the award on behalf of such owner or
trainer who has been found to have violated this section, the fund shall
be entitled to an award against such owner or trainer for the amount so
paid which shall be collected in the same manner as an award of
compensation.
5. With respect to a black car operator who, pursuant to section two
of this chapter, is an employee of the New York black car operators'
injury compensation fund, inc., the central dispatch facility for which
the black car operator was performing services at the time of the
accident shall be solely responsible for the double payments described
in subdivision one of this section, to the extent that such payments
exceed any amounts otherwise payable with respect to such black car
operator under any other section of this chapter, and the New York black
car operators' injury compensation fund, inc. shall have no
responsibility for such excess payments, unless there shall be a failure
of the responsible central dispatch facility to pay such award within
the time provided under this chapter. In the event of such failure to
pay, the board may require the fund to pay the award on behalf of the
central dispatch facility that is found to have violated this section.
In such a case, the fund shall be entitled to an award against the
central dispatch facility for the excess amount paid by the fund, which
shall be collected in the same manner as an award of compensation.
Schedule in case of disability. The following schedule of
compensation is hereby established:
1. Permanent total disability. In case of total disability adjudged to
be permanent sixty-six and two-thirds per centum of the average weekly
wages shall be paid to the employee during the continuance of such total
disability. Loss of both hands, or both arms, or both feet, or both
legs, or both eyes, or of any two thereof shall, in the absence of
conclusive proof to the contrary, constitute permanent total disability.
In all other cases permanent total disability shall be determined in
accordance with the facts. Notwithstanding any other provision of this
chapter, an injured employee disabled due to the loss or total loss of
use of both eyes, or both hands, or both arms, or both feet, or both
legs, or of any two thereof shall not suffer any diminution of his
compensation by engaging in business or employment provided his earnings
or wages, when combined with his compensation, shall not be in excess of
the wage base on which the maximum weekly compensation benefit is
computed under the law in effect at time of such earning; further
provided, that if the combination exceeds such wage base, the
compensation shall be diminished to an amount which, together with his
earnings or wages, shall equal the wage base; and further provided that
the application of this subdivision shall not result in reduction of
compensation which an injured employee who is disabled due to the loss
or total loss of use of both eyes, or both hands, or both arms, or both
feet, or both legs or of any two thereof, would otherwise be entitled to
under any other provision of this section.
2. Temporary total disability. In case of temporary total disability,
sixty-six and two-thirds per centum of the average weekly wages shall be
paid to the employee during the continuance thereof, except as otherwise
provided in this chapter.
3. Permanent partial disability. In case of disability partial in
character but permanent in quality the compensation shall be sixty-six
and two-thirds per centum of the average weekly wages and shall be paid
to the employee for the period named in this subdivision, as follows:
Number of
Member lost weeks' compensation
a. Arm ............................................................. 312
b. Leg ............................................................. 288
c. Hand ............................................................ 244
d. Foot ............................................................ 205
e. eye ............................................................. 160
f. Thumb ............................................................ 75
g. First finger ..................................................... 46
h. Great toe ........................................................ 38
i. Second finger .................................................... 30
j. Third finger ..................................................... 25
k. Toe other than great toe ......................................... 16
l. Fourth finger .................................................... 15
m. Loss of hearing. Compensation for the complete loss of the hearing
of one ear, for sixty weeks, for the loss of hearing of both ears, for
one hundred and fifty weeks.
n. Phalanges. Compensation for the loss of more than one phalange of a
digit shall be the same as for loss of the entire digit. Compensation
for loss of the first phalange shall be one-half of the compensation for
loss of the entire digit.
o. Amputated arm or leg. Compensation for an arm or a leg, if
amputated at or above the wrist or ankle, shall be for the proportionate
loss of the arm or leg.
p. Binocular vision or per centum of vision. Compensation for loss of
binocular vision or for eighty per centum or more of the vision of an
eye shall be the same as for loss of the eye.
q. Two or more digits. Compensation for loss or loss of use of two or
more digits, or one or more phalanges of two or more digits, of a hand
or foot may be proportioned to the loss of use of the hand or foot
occasioned thereby but shall not exceed the compensation for loss of a
hand or foot.
r. Total loss of use. Compensation for permanent total loss of use of
a member shall be the same as for loss of the member.
s. Partial loss or partial loss of use. Compensation for permanent
partial loss or loss of use of a member may be for proportionate loss or
loss of use of the member. Compensation for permanent partial loss or
loss of use of an eye shall be awarded on the basis of uncorrected loss
of vision or corrected loss of vision resulting from an injury whichever
is the greater.
t. Disfigurement. 1. The board may award proper and equitable
compensation for serious facial or head disfigurement, not to exceed
twenty thousand dollars, including a disfigurement continuous in length
which is partially in the facial area and also extends into the neck
region as described in paragraph two hereof.
2. The board, if in its opinion the earning capacity of an employee
has been or may in the future be impaired, may award compensation for
any serious disfigurement in the region above the sterno clavicular
articulations anterior to and including the region of the sterno cleido
mastoid muscles on either side, but no award under subdivisions one and
two shall, in the aggregate, exceed twenty thousand dollars.
3. Notwithstanding any other provision hereof, two or more serious
disfigurements, not continuous in length, resulting from the same
injury, if partially in the facial area and partially in the neck region
as described in paragraph two hereof, shall be deemed to be a facial
disfigurement.
u. Total or partial loss or loss of use of more than one member or
parts of members. In any case in which there shall be a loss or loss of
use of more than one member or parts of more than one member set forth
in paragraphs a through t, inclusive, of this subdivision, but not
amounting to permanent total disability, the board shall award
compensation for the loss or loss of use of each such member or part
thereof, which awards shall be fully payable in one lump sum upon the
request of the injured employee.
v. Additional compensation for impairment of wage earning capacity in
certain permanent partial disabilities. Notwithstanding any other
provision of this subdivision, additional compensation shall be payable
for impairment of wage earning capacity for any period after the
termination of an award under paragraphs a, b, c, or d, of this
subdivision for the loss or loss of use of fifty per centum or more of a
member, provided such impairment of earning capacity shall be due solely
thereto. Such additional compensation shall be determined in accordance
with paragraph w of this subdivision. The additional compensation shall
be reduced by fifty per centum of any amount of disability benefits
which the disabled employee is receiving or entitled to receive for the
same period under the social security act, and shall cease on the date
the disabled employee receives or is entitled to receive old-age
insurance benefits under the social security act. As soon as practicable
after the injury, the worker shall be required to participate in a board
approved rehabilitation program; or shall have demonstrated cooperation
with efforts to institute such a board approved program and shall have
been determined by the board not to be a feasible candidate for
rehabilitation; such rehabilitation shall constitute treatment and care
as provided in this chapter.
w. Other cases. In all other cases of permanent partial disability,
the compensation shall be sixty-six and two-thirds percent of the
difference between the injured employee's average weekly wages and his
or her wage-earning capacity thereafter in the same employment or
otherwise. Compensation under this paragraph shall be payable during
the continuance of such permanent partial disability, without the
necessity for the claimant who is entitled to benefits at the time of
classification to demonstrate ongoing attachment to the labor market,
but subject to reconsideration of the degree of such impairment by the
board on its own motion or upon application of any party in interest
however, all compensation payable under this paragraph shall not exceed
(i) five hundred twenty-five weeks in cases in which the loss of
wage-earning capacity is greater than ninety-five percent; (ii) five
hundred weeks in cases in which the loss of wage-earning capacity is
greater than ninety percent but not more than ninety-five percent; (iii)
four hundred seventy-five weeks in cases in which the loss of
wage-earning capacity is greater than eighty-five percent but not more
than ninety percent; (iv) four hundred fifty weeks in cases in which the
loss of wage-earning capacity is greater than eighty percent but not
more than eighty-five percent; (v) four hundred twenty-five weeks in
cases in which the loss of wage-earning capacity is greater than
seventy-five percent but not more than eighty percent; (vi) four hundred
weeks in cases in which the loss of wage-earning capacity is greater
than seventy percent but not more than seventy-five percent; (vii) three
hundred seventy-five weeks in cases in which the loss of wage-earning
capacity is greater than sixty percent but not more than seventy
percent; (viii) three hundred fifty weeks in cases in which the loss of
wage-earning capacity is greater than fifty percent but not more than
sixty percent; (ix) three hundred weeks in cases in which the loss of
wage-earning capacity is greater than forty percent but not more than
fifty percent; (x) two hundred seventy-five weeks in cases in which the
loss of wage-earning capacity is greater than thirty percent but not
more than forty percent; (xi) two hundred fifty weeks in cases in which
the loss of wage-earning capacity is greater than fifteen percent but
not more than thirty percent; and (xii) two hundred twenty-five weeks in
cases in which the loss of wage-earning capacity is fifteen percent or
less. For a claimant with a date of accident or disablement after the
effective date of the chapter of the laws of two thousand seventeen that
amended this subdivision, where the carrier or employer has provided
compensation pursuant to subdivision five of this section beyond one
hundred thirty weeks from the date of accident or disablement, all
subsequent weeks in which compensation was paid shall be considered to
be benefit weeks for purposes of this section, with the carrier or
employer receiving credit for all such subsequent weeks against the
amount of maximum benefit weeks when permanent partial disability under
this section is determined. In the event of payment for intermittent
temporary partial disability paid after one hundred thirty weeks from
the date of accident or disablement, such time shall be reduced to a
number of weeks, for which the carrier will receive a credit against the
maximum benefit weeks. For a claimant with a date of accident or
disablement after the effective date of the chapter of the laws of two
thousand seventeen that amended this subdivision, when permanency is at
issue, and a claimant has submitted medical evidence that he or she is
not at maximum medical improvement, and the carrier has produced or has
had a reasonable opportunity to produce an independent medical
examination concerning maximum medical improvement, and the board has
determined that the claimant is not yet at maximum medical improvement,
the carrier shall not receive a credit for benefit weeks prior to a
finding that the claimant has reached maximum medical improvement, at
which time the carrier shall receive credit for any weeks of temporary
disability paid to claimant after such finding against the maximum
benefit weeks awarded under this subdivision. For those claimants
classified as permanently partially disabled who no longer receive
indemnity payments because they have surpassed their number of maximum
benefit weeks, the following provisions will apply:
(1) There will be a presumption that medical services shall continue
notwithstanding the completion of the time period for compensation set
forth in this section and the burden of going forward and the burden of
proof will lie with the carrier, self-insured employer or state
insurance fund in any application before the board to discontinue or
suspend such services. Medical services will continue during the
pendency of any such application and any appeals thereto.
(2) The board is directed to promulgate regulations that establish an
independent review and appeal by an outside agent or entity of the
board's choosing of any administrative law judge's determination to
discontinue or suspend medical services before a final determination of
the board.
x. Impairment guidelines. The chair shall consult with representatives
of labor, business, medical providers, insurance carriers, and
self-insured employers regarding revisions to permanency impairment
guidelines, including permitting review and comment by such
representatives' chosen medical advisors, and after consultation shall,
in accordance with the state administrative procedure act, propose for
public comment revised permanency guidelines concerning medical
evaluation of impairment and the determination of permanency as set
forth in paragraphs a through v of this subdivision by September first,
two thousand seventeen, with such guidelines to be adopted by the chair
by January first, two thousand eighteen. The permanency impairment
guidelines shall be reflective of advances in modern medicine that
enhance healing and result in better outcomes. In the event the chair
fails to adopt such permanency guidelines to be effective by January
first, two thousand eighteen, the chair shall adopt, by emergency
regulation, permanency impairment guidelines. The permanency impairment
guidelines adopted by emergency regulation shall be either the
impairment guidelines proposed by the chair on September first, two
thousand seventeen or the permanency impairment guidelines created by
the consultant to the board and submitted to representatives of labor,
business, medical providers, insurance carriers, and self-insured
employers, as voted on in an emergency meeting of the board to be held
on December twenty-ninth, two thousand seventeen. In the event the board
is unable to reach a decision at such meeting, the chair shall select
the permanency guidelines to be adopted by emergency regulations.
Emergency regulations shall be in effect for ninety days or until such
time as permanent regulations are adopted by the chair. As of January
first, two thousand eighteen the 2012 permanency impairment guidelines
pertaining to paragraphs a through v of subdivision three of section
fifteen of this article are repealed, and shall have no effect. The
board shall train adjudication and other staff to ensure timely and
effective implementation.
4. Effect of award. An award made to a claimant under subdivision
three shall in case of death arising from causes other than the injury
be payable to and for the benefit of the persons following:
a. If there be a surviving spouse and no child of the deceased under
the age of eighteen years, to such spouse.
b. If there be a surviving spouse and surviving child or children of
the deceased under the age of eighteen years, one-half shall be payable
to the surviving spouse and the other half to the surviving child or
children.
The board may in its discretion require the appointment of a guardian
for the purpose of receiving the compensation of the minor child. In the
absence of such a requirement by the board the appointment for such a
purpose shall not be necessary.
c. If there be a surviving child or children of the deceased under the
age of eighteen years, but no surviving spouse then to such child or
children.
d. If there be no surviving spouse and no surviving child or children
of the deceased under the age of eighteen years, then to such dependent
or dependents as defined in section sixteen of this chapter, as directed
by the board; and if there be no such dependents, then to the estate of
such deceased in an amount not exceeding reasonable funeral expenses as
provided in subdivision one of section sixteen of this chapter, or, if
there be no estate, to the person or persons paying the funeral expenses
of such deceased in an amount not exceeding reasonable funeral expenses
as provided in subdivision one of section sixteen of this chapter.
An award for disability may be made after the death of the injured
employee.
4-a. Protracted temporary total disability in connection with
permanent partial disability. In case of temporary total disability and
permanent partial disability both resulting from the same injury, if the
temporary total disability continues for a longer period than the number
of weeks set forth in the following schedule, the period of temporary
total disability in excess of such number of weeks shall be added to the
compensation period provided in subdivision three of this section: Arm,
thirty-two weeks; leg, forty weeks; hand, thirty-two weeks; foot,
thirty-two weeks; ear, twenty-five weeks; eye, twenty weeks; thumb,
twenty-four weeks; first finger, eighteen weeks; great toe, twelve
weeks; second finger, twelve weeks; third finger, eight weeks; fourth
finger, eight weeks; toe other than great toe, eight weeks.
In any case resulting in loss or partial loss of use of arm, leg,
hand, foot, ear, eye, thumb, finger or toe, where the temporary total
disability does not extend beyond the periods above mentioned for such
injury, compensation shall be limited to the schedule contained in
subdivision three.
5. Temporary partial disability. In case of temporary partial
disability resulting in decrease of earning capacity, the compensation
shall be two-thirds of the difference between the injured employee's
average weekly wages before the accident and his wage earning capacity
after the accident in the same or other employment.
5-a. Determination of wage earning capacity. 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.
5-b. 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, and such approval shall only be given when it is found
that the adjustment is fair and in the best interest of the claimant.
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.
6. Maximum and minimum compensation for disability. (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 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 respectively, he or she
shall receive his or her full weekly wages. Compensation 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 twenty-five
dollars per week, that occurs (3) on or after July first, nineteen
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
disablement 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 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 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 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. 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 January first, two thousand twenty-four and before
January first, two thousand twenty-five shall not be less than two
hundred seventy-five dollars per week except that if the employee's
wages at the time of injury are less than two hundred seventy-five
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 on or
after January first, two thousand twenty-five and before July first, two
thousand twenty-six shall not be less than three hundred twenty-five
dollars per week except that if the employee's wages at the time of
injury are less than three hundred twenty-five 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 on or after July first, two thousand
twenty-six and on or after July first of each succeeding year shall not
be less than one-fifth of the New York state average weekly wage for the
year in which it is reported except that if the employee's weekly wages
are equal to or less than one-fifth of the New York state average weekly
wage for the year in which it is reported, 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
earnings or earning capacity exceed the amount of wages the employee was
receiving on September eleventh, two thousand one.
(b) Compensation for temporary total disability due to an accident or
disablement resulting from an occupational disease that occurs on or
after July first, nineteen hundred seventy-four, and prior to July
first, nineteen hundred seventy-eight, shall not exceed one hundred
twenty-five dollars per week nor be less than thirty dollars per week;
except that if the employee's wages at the time of injury are less than
thirty dollars per week, he shall receive his full weekly wages.
Compensation for permanent total disability or for permanent or
temporary partial disability due to an accident or disablement resulting
from an occupational disease that occurs on or after July first,
nineteen hundred seventy-four, and prior to January first, nineteen
hundred seventy-eight, shall not exceed ninety-five 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
shall receive his 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.
(c) Compensation for temporary total disability due to an accident or
disablement resulting from an occupational disease that occurs on or
after July first, nineteen hundred seventy and prior to July first,
nineteen hundred seventy-four, shall not exceed ninety-five dollars per
week nor be less than thirty dollars per week; except that if the
employee's wages at the time of injury are less than thirty dollars per
week, he shall receive his full weekly wages. Compensation for permanent
total disability or for permanent or temporary partial disability due to
an accident or disablement resulting from an occupational disease that
occurs on or after July first, nineteen hundred seventy and prior to
July first, nineteen hundred seventy-four, shall not exceed 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 shall receive his 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.
(d) Compensation for temporary total disability due to an accident or
disablement resulting from an occupational disease that occurs on or
after July first, nineteen hundred sixty-eight, and prior to July first,
nineteen hundred seventy, shall not exceed eighty-five dollars per week
nor be less than thirty dollars per week; except that if the employee's
wages at the time of injury are less than thirty dollars per week, he
shall receive his full weekly wages. Compensation for permanent total
disability or for permanent or temporary partial disability due to an
accident or disablement resulting from an occupational disease that
occurs on or after July first, nineteen hundred sixty-eight, and prior
to July first, nineteen hundred seventy, shall not exceed seventy
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 shall receive his 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.
(e) 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, nineteen hundred sixty-five, and prior to July first,
nineteen hundred sixty-eight, shall not exceed sixty 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
shall receive his 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.
(f) 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, nineteen hundred sixty-two and prior to July first
nineteen hundred sixty-five, shall not exceed fifty-five 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 shall receive his 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.
(g) 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, nineteen hundred sixty and prior to July first,
nineteen hundred sixty-two, shall not exceed fifty 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
shall receive his 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.
(h) 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, nineteen hundred fifty-eight and prior to July first,
nineteen hundred sixty, shall not exceed forty-five dollars per week;
nor, except in cases of permanent total disability, 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 shall receive his full
weekly wages; further provided, that in each case of permanent total
disability minimum compensation shall not be less than twenty dollars
per week, except that where the employee's wages at the time of injury
are less than twenty dollars per week he shall receive his 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.
(i) 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, nineteen hundred fifty-four and prior to July first,
nineteen hundred fifty-eight, shall not exceed thirty-six dollars per
week; nor, except in cases of permanent total disability, be less than
twelve dollars per week; except that if the employee's wages at the time
of injury are less than twelve dollars per week, he shall receive his
full weekly wages; further provided, that in each case of permanent
total disability minimum compensation shall not be less than fifteen
dollars per week, except that where the employee's wages at the time of
injury are less than fifteen dollars per week he shall receive his 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.
(j) 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, nineteen hundred forty-eight and prior to July first,
nineteen hundred fifty-four, shall not exceed thirty-two dollars per
week and 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 June first, nineteen hundred forty-six, and prior to July first,
nineteen hundred forty-eight, shall not exceed twenty-eight dollars per
week; nor, except in cases of permanent total disability, be less than
twelve dollars per week; except that if the employee's wages at the time
of injury are less than twelve dollars per week, he shall receive his
full weekly wages; further provided, that in each case of permanent
total disability minimum compensation shall not be less than fifteen
dollars per week, except that where the employee's wages at the time of
injury are less than fifteen dollars per week, he shall receive his full
weekly wages but 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; further
provided, that compensation may be in excess of twenty-five dollars but
shall not exceed twenty-eight dollars per week for permanent or
temporary total disability due to an accident or disablement resulting
from an occupational disease that occurred on or after June first,
nineteen hundred forty-four, and prior to July first, nineteen hundred
forty-eight, and in each case of temporary total disability minimum
compensation shall not be less than twelve dollars per week, except that
where the employee's wages at the time of injury are less than twelve
dollars per week, he shall receive his full weekly wages; and further
provided that, because of existing conditions due to the war
compensation for permanent or temporary total disability may be in
excess of twenty-five dollars but shall not exceed twenty-eight dollars
per week for any period of disability arising out of claims accruing
during the three year period commencing June first, nineteen hundred
forty-four.
6-a. Reclassification of disabilities. Subject to the limitations set
forth in sections twenty-five-a and one hundred twenty-three of this
chapter, the board may, at any time, without regard to the date of
accident, upon its own motion, or on application of any party in
interest, reclassify a disability upon proof that there has been a
change in condition, or that the previous classification was erroneous
and not in the interest of justice.
7. Previous disability. The fact that an employee has suffered
previous disability or received compensation therefor shall not preclude
him from compensation for a later injury nor preclude compensation for
death resulting therefrom; but in determining compensation for the later
injury or death his average weekly wages shall be such sum as will
reasonably represent his earning capacity at the time of the later
injury, provided, however, that an employee who is suffering from a
previous disability shall not receive compensation for a later injury in
excess of the compensation allowed for such injury when considered by
itself and not in conjunction with the previous disability except as
hereinafter provided in subdivision eight of this section.
8. Disability following previous permanent physical impairment. (a)
Declaration of policy and legislative intent. As a guide to the
interpretation and application of this subdivision, the policy and
intent of this legislature is declared to be as follows:
First: That every person in this state who works for a living is
entitled to reasonable opportunity to maintain his independence and
self-respect through self-support even after he/she has been physically
handicapped by injury or disease;
Second: That any plan which will reasonably, equitably and practically
operate to break down hindrances and remove obstacles to the employment
of partially disabled persons who (i) are honorably discharged from our
armed forces, or (ii) have a qualifying condition, as defined in section
one of the veterans' services law, and received a discharge other than
bad conduct or dishonorable from such service, or (iii) are discharged
LGBT veterans, as defined in section one of the veterans' services law,
and received a discharge other than bad conduct or dishonorable from
such service, or any other physically handicapped persons, is of vital
importance to the state and its people and is of concern to this
legislature;
Third: That it is the considered judgment of this legislature that the
system embodied in this subdivision, which makes a logical and equitable
adjustment of the liability under the workers' compensation law which an
employer must assume in hiring employees, constitutes a practical and
reasonable approach to a solution of the problem for the employment of
physically handicapped persons.
Moreover, because of the insidious nature of slowly developing
diseases such as silicosis and other dust diseases and because of the
reluctance on the part of employers to employ persons previously exposed
to silica or other harmful dust, means should also be provided whereby
employers will be encouraged to employ and to continue the employment of
such persons, by apportioning liability fairly between the employer and
industry as a whole without at the same time removing any incentive for
the prevention of harmful dust diseases.
(b) Definition. As used in this subdivision, "permanent physical
impairment" means any permanent condition due to previous accident or
disease or any congenital condition which is or is likely to be a
hindrance or obstacle to employment.
(c) Permanent total disability after permanent partial disability.
Notwithstanding the provisions of paragraph (d) of this subdivision, if
an employee who has previously incurred permanent partial disability
through the loss of one hand, one arm, one foot, one leg, or one eye,
incurs permanent total disability through the loss of another member or
organ, he/she shall be paid, in addition to the compensation for
permanent partial disability provided in this section and after the
cessation of the payments for the prescribed period of weeks special
additional compensation during the continuance of such total disability
to the amount of sixty-six and two-thirds per centum of the average
weekly wage earned by him/her at the time the total permanent disability
was incurred. If such employee shall establish an earning capacity by
employment he shall be paid during the period of such employment,
instead of the additional compensation above provided, two-thirds of the
difference between his average weekly wages at the time the total
disability was incurred and his wage earning capacity as determined by
his actual earnings in such employment, subject to the limitations in
subdivision six of this section. Such additional compensation, and
expense as in this subdivision provided, shall be paid out of the
special disability fund and in the manner as hereinafter in this
subdivision provided.
(d) If an employee of an employer who has secured the payment of
compensation as required under the provisions of section fifty of this
chapter, who had a total or partial loss or loss of use of one hand, one
arm, one foot, one leg or one eye, or who has other permanent physical
impairment incurs a subsequent disability by accident arising out of and
in the course of his employment or an occupational disease arising
therefrom, resulting in a permanent disability caused by both conditions
that is materially and substantially greater than that which would have
resulted from the subsequent injury or occupational disease alone, the
employer or his insurance carrier shall in the first instance pay all
awards of compensation and all medical expense provided by this chapter,
but such employer or his insurance carrier, except as specifically
provided in paragraph (ee) of this subdivision, shall be reimbursed from
the special disability fund created by this subdivision for all
compensation and medical benefits subsequent to those payable for the
first one hundred four weeks of disability for claims where the date of
accident or date of disablement occurred prior to August first, nineteen
hundred ninety-four, and two hundred sixty weeks of disability for
claims where the date of accident or date of disablement occurred on or
after August first, nineteen hundred ninety-four, regardless of
knowledge on the part of the employer as to the existence of such
pre-existing permanent physical impairment.
Notwithstanding anything to the contrary in this chapter, there may be
apportionment of liability for the special disability fund under this
subdivision within a single claim by disposition between the fund,
carriers, self-insurers or employers.
(e) If the subsequent injury of such an employee resulting from an
accident arising out of and in the course of his employment or an
occupational disease resulting therefrom, as set forth in paragraph (d)
of this subdivision, shall result in the death of the employee and it
shall be determined that either the injury or death would not have
occurred except for such pre-existing permanent physical impairment, the
employer or his insurance carrier shall in the first instance pay the
funeral expenses and the death benefits prescribed by this chapter, but
he or his insurance carrier, except as specifically provided in
paragraph (ee) of this subdivision, shall be reimbursed from the special
disability fund created by this subdivision for all death benefits
payable in excess of one hundred four weeks of disability for claims
where the date of accident or date of disablement occurred prior to
August first, nineteen hundred ninety-four, and two hundred sixty weeks
of disability for claims where the date of accident or date of
disablement occurred on or after August first, nineteen hundred
ninety-four, regardless of knowledge on the part of the employer as to
the existence of such pre-existing permanent physical impairment.
(ee) If an employee of an employer who has secured the payment of
compensation as required under the provisions of section fifty of this
chapter is disabled from silicosis or other dust disease, or in the
event of death, death was due to silicosis or other dust disease, and if
such an employee has been subject to an injurious exposure in an
employment defined under paragraph twenty-nine of subdivision two of
section three of this chapter, the provisions of this subdivision shall
apply except as hereinafter stated; and it shall not be required that
the employee had, either at the time of hiring or during the employment,
any previous physical condition or disability which may result in such
disability or death. In all such cases the employer or his insurance
carrier shall in the first instance pay all awards of compensation and
all medical expense provided by this chapter; and in the event of death,
the employer or his insurance carrier shall also in the first instance
pay the funeral expenses and the death benefits prescribed by this
chapter; but such employer or his insurance carrier shall subject to the
limitations of subparagraphs two and three of paragraph (h) of this
subdivision be reimbursed from the special disability fund created by
this subdivision for all compensation and medical benefits subsequent to
those payable for the first one hundred four weeks of disability for
claims where the date of accident or date of disablement occurred prior
to August first, nineteen hundred ninety-four, and two hundred sixty
weeks of disability for claims where the date of accident or date of
disablement occurred on or after August first, nineteen hundred
ninety-four, and, in the event of death, the employer or his insurance
carrier shall be reimbursed from the special disability fund created by
this subdivision for all death benefits payable in excess of one hundred
four weeks for claims where the date of accident or date of disablement
occurred prior to August first, nineteen hundred ninety-four, and two
hundred sixty weeks for claims where the date of accident or date of
disablement occurred on or after August first, nineteen hundred
ninety-four; provided, however, that when total disability or death
occurred after July first, nineteen hundred forty-seven, and prior to
July first, nineteen hundred seventy-four, the employer or his insurance
carrier shall be reimbursed from the special disability fund created by
this subdivision for all compensation and medical benefits including
funeral expenses and death benefits subsequent to those payable for the
first two hundred sixty weeks of disability and death benefits combined;
and further provided, however, that in the event of death due to
silicosis or other dust disease on or after July first, nineteen hundred
forty-seven, of such an employee who shall have been totally disabled
from silicosis or other dust disease prior to such date, the employer or
his insurance carrier shall be reimbursed from the special disability
fund created by this subdivision for death benefits subsequent to those
payable for the first one hundred four weeks.
The compensation of an employee who has heretofore been found to be
totally and permanently disabled from silicosis or other dust disease
and whose disablement occurred prior to July first, nineteen hundred
forty-seven, shall be continued or resumed, as the case may be, after
June first, nineteen hundred fifty-one, and payments shall be made
during continuance of such disability at his/her regular weekly rate,
notwithstanding the fact that such compensation is in excess of the
maximum provided for his/her case under former article four-a of this
chapter; but such compensation in excess of the maximum so provided
shall be paid from the special fund created by this subdivision.
(f) Any award under this subdivision shall be made against the
employer or his or her insurance carrier, but if such employer or
insurance carrier be entitled to reimbursement as provided in this
subdivision, notice or claim of the right to such reimbursement shall be
filed with the board in writing prior to the final determination that
the resulting disability is permanent, but in no case more than one
hundred four weeks after the date of disability or death or fifty-two
weeks after the date that a claim for compensation is filed with the
chair, whichever is later, or in the event of the reopening of a case
theretofore closed, no later than the determination of permanency upon
such reopening. In no event shall such a notice of claim be filed beyond
the dates set forth in subparagraph two of paragraph (h) of this
subdivision.
The employer or his or her insurance carrier shall in the first
instance make the payments of compensation and medical expenses provided
by this subdivision. Whenever for any reason payments are not made by
the employer or his or her insurance carrier at any time after the
payments have been made for the first one hundred four weeks for claims
where the date of accident or date of disablement occurred prior to
August first, nineteen hundred ninety-four, and two hundred sixty weeks
for claims where the date of accident or date of disablement occurred on
or after August first, nineteen hundred ninety-four, the payments of
subsequent compensation and medical expenses shall be made out of the
special disability fund by the commissioner of taxation and finance upon
vouchers approved by the chair of the workers' compensation board. In
case any payments prior to the expiration of the first one hundred four
weeks for claims where the date of accident or date of disablement
occurred prior to August first, nineteen hundred ninety-four, and two
hundred sixty weeks for claims where the date of accident or date of
disablement occurred on or after August first, nineteen hundred
ninety-four are not made by the employer or his or her insurance carrier
by reason of the insolvency of such carrier, the payments until the
expiration of one hundred four weeks for claims where the date of
accident or date of disablement occurred prior to August first, nineteen
hundred ninety-four, and two hundred sixty weeks for claims where the
date of accident or date of disablement occurred on or after August
first, nineteen hundred ninety-four shall be made out of the stock
workers' compensation security fund created by the provisions of section
one hundred seven of this chapter if the insolvent carrier be a stock
company, or out of the mutual workers' compensation security fund
created under the provisions of section one hundred nine-d of this
chapter if the carrier be a mutual company. If any such payments are not
made by an employer permitted to secure the payment of compensation
pursuant to the provisions of subdivision three of section fifty of this
chapter, the payments shall be made out of the proceeds of the sale of
any securities deposited by the employer with the chair, upon vouchers
approved by the chair, until such payments have been made for one
hundred four weeks for claims where the date of accident or date of
disablement occurred prior to August first, nineteen hundred
ninety-four, and two hundred sixty weeks for claims where the date of
accident or date of disablement occurred on or after August first,
nineteen hundred ninety-four, from the date of disability, after which
date they shall be made out of the special disability fund in the manner
above provided.
In all cases in which awards have been made and charged against the
special fund or injuries have occurred which would require payments to
be made in accordance with the provisions of former subdivision eight of
this section as it existed immediately prior to the time this
subdivision, as hereby added, takes effect, the compensation so awarded
or that shall be awarded in such cases shall continue to be paid out of
the special disability fund by the commissioner of taxation and finance
upon vouchers approved by the chair of the workers' compensation board,
as though this subdivision had not been enacted.
(g) Upon the making of a determination that an employer or insurance
carrier is entitled to reimbursement from the special disability fund in
any case where the employer or insurance carrier has made payment into
the aggregate trust fund, as provided in section twenty-seven of this
chapter, or where payment of compensation has been commuted into one or
more lump sum payments, the employer or insurance carrier shall be
reimbursed forthwith for the sums paid in excess of those payable for
one hundred four weeks for claims where the date of accident or date of
disablement occurred prior to August first, nineteen hundred
ninety-four, two hundred sixty weeks for claims where the date of
accident or date of disablement occurred on or after August first,
nineteen hundred ninety-four or two hundred sixty weeks in a silicosis
or other dust disease case as otherwise provided in paragraph (ee) of
this subdivision, exclusive of administrative and loading charges paid
pursuant to section twenty-seven, in accordance with the decision and
order of the board. In all other cases such employer or insurance
carrier shall, periodically every six months from the decision and order
of the board, be reimbursed from such special disability fund for all
compensation and medical expense in accordance with the provisions of
paragraph (f) of this subdivision.
(h) Special disability fund. (1) The fund heretofore maintained and
provided for by and pursuant to former subdivision eight of this
section, is hereby continued and shall retain the liabilities heretofore
charged or chargeable thereto under the provisions of such former
subdivision eight of this section as it existed immediately prior to the
time this subdivision, as hereby added, takes effect, and the
liabilities chargeable thereto under the provisions of former
subdivision eight-a of this section as added by chapter seven hundred
forty-nine of the laws of nineteen hundred forty-four and repealed at
the same time this subdivision, as heretofore added, takes effect, and
payments therefrom on account of such liabilities shall continue to be
made as provided herein. The said fund shall be known as the special
disability fund and shall be available only for the purposes stated in
this subdivision, and the assets thereof shall not at any time be
appropriated or diverted to any other use or purpose.
(2) (A) No carrier or employer, or the state insurance fund, may file
a claim for reimbursement from the special disability fund, for an
injury or illness with a date of accident or date of disablement on or
after July first, two thousand seven. No carrier or employer, or the
state insurance fund, may file a claim for reimbursement from the
special disability fund after July first, two thousand ten, and no
written submissions or evidence in support of such a claim may be
submitted after that date.
(B) All requests for reimbursement from the special disability fund
with a date of injury or date of disablement prior to July first, two
thousand seven as to which the board has determined that the special
disability fund is liable must be submitted to the special disability
fund by the later of (i) one year after the expense has been paid, or
(ii) one year from the effective date of this paragraph.
(3) Effective the first day of January, two thousand fourteen, and
annually thereafter, the chair of the board shall collect from all
affected employers (A) a sum equal to one hundred fifty per centum of
the total expected disbursements made from the special disability fund
during the year (not including any disbursements made on account of
anticipated liabilities or waiver agreements funded by bond proceeds and
related earnings), less the estimated amount of the net assets in such
fund expected as of December thirty-first and (B) a sum sufficient to
cover debt service, and associated costs (the "debt service assessment")
to be paid during the calendar year by the dormitory authority, as
calculated in accordance with subparagraph four of this paragraph. Such
assessments shall be included in the assessment rate established
pursuant to subdivision two of section one hundred fifty-one of this
chapter. Such assessments shall be deposited with the commissioner of
taxation and finance and transferred to the benefit of such fund
following payment of debt service and associated costs, if any, pursuant
to section one hundred fifty-one of this chapter.
(4) The chair and the commissioner of taxation and finance are
authorized and directed to enter into a financing agreement with the
dormitory authority, to be known as the "special disability fund
financing agreement." Such agreement shall set forth the process for
calculating the annual debt service of the bonds issued by the dormitory
authority and any other associated costs. For purposes of this section,
"associated costs" may include a coverage factor, reserve fund
requirements, all costs of any nature incurred by the dormitory
authority in connection with the special disability fund financing
agreement or pursuant thereto, the operating costs of the waiver
agreement management office, the costs of any independent audits
undertaken under this section, and any other costs for the
implementation of this subparagraph and the issuance of bonds by the
dormitory authority, including interest rate exchange payments, rebate
payments, liquidity fees, credit provider fees, fiduciary fees,
remarketing, dealer, auction agent and related fees and other similar
bond-related expenses, unless otherwise funded. By January first of each
year, the dormitory authority shall provide to the chair the calculation
of the amount expected to be paid by the dormitory authority in debt
service and associated costs for purposes of calculating the debt
service assessment as set forth in subparagraph three of this paragraph.
All monies received on account of any assessment under subparagraph
three of this paragraph and this subparagraph shall be applied in
accordance with this subparagraph and in accordance with the financing
agreement until the financial obligations of the dormitory authority in
respect to its contract with its bondholders are met and all associated
costs payable to the dormitory authority have been paid, notwithstanding
any other provision of law respecting secured transactions. This
provision may be included by the dormitory authority in any contract of
the dormitory authority with its bondholders.
The special disability fund financing agreement may restrict
disbursements, investments, or rebates, and may prescribe a system of
accounts applicable to the special disability fund, including custody of
an account with a trust indenture trustee that may be prescribed by the
dormitory authority as part of its contract with the bondholders. For
purposes of this paragraph, the term "bonds" shall include notes issued
in anticipation of the issuance of bonds, or notes issued pursuant to a
commercial paper program.
(5) The commissioner of taxation and finance is hereby authorized to
receive and credit to such special disability fund any sum or sums that
may at any time be contributed to the state by the United States of
America under any act of congress, or otherwise, to which the state may
be or become entitled by reason of any payments made out of such fund.
(6) The commissioner of taxation and finance shall be the custodian of
said fund and, unless otherwise provided for in the special disability
fund financing agreement, shall invest any surplus or reserve moneys
thereof in securities which constitute legal investments for savings
banks under the laws of this state and in interest bearing certificates
of deposit of a bank or trust company located and authorized to do
business in this state or of a national bank located in this state
secured by a pledge of direct obligations of the United States or of the
state of New York in an amount equal to the amount of such certificates
of deposit, and may sell any of the securities or certificates of
deposit in which such fund is invested if necessary for the proper
administration or in the best interest of such fund. Disbursements from
such fund as provided by this subdivision shall be made by the
commissioner of taxation and finance upon vouchers signed by the chair
of the board unless the financing agreement provides for some other
means of authorizing such disbursements that is no less protective of
the fund.
The commissioner of taxation and finance, as custodian of such fund,
annually as soon as practicable after January first, shall furnish to
the chair of the workers' compensation board a statement of the fund,
setting forth the balance of moneys in the said fund as of the beginning
of the calendar year, the income of the fund, the summary of payments
out of the fund on account of reimbursements and other charges ordered
to be paid by the board, and all other charges against the fund, and
setting forth the balance of the fund remaining to its credit on
December thirty-first. Such statement shall be open to public inspection
in the office of the secretary of the board. The chair, not less than
ninety days after the issuance of the dormitory authority's annual
audit, shall furnish to the temporary president of the senate and the
speaker of the assembly the following reports on the special disability
fund: a revenue and operating expense statement; a financing plan; a
report concerning the assets and liabilities; the number of waiver
agreements entered into by the waiver agreement management office; the
number of claimants remaining in the fund; the estimated current
unfunded liability of the fund with respect to such claims; and a debt
issuance report including but not limited to (i) pledged assessment
revenue and securitization coverage, (ii) debt service maturities, (iii)
interest rate exchange or similar agreements, and (iv) financing and
issuance costs.
The commissioner of taxation and finance may establish within the
special disability fund such accounts and sub-accounts as he or she
deems useful for the operation of the fund, or as necessary to segregate
moneys within the fund, subject to the provisions of the financing
agreement. The waiver agreement management office, as defined in section
thirty-two of this article, shall make application to the chair on a
quarterly basis for any administrative costs incurred by the office.
(i) When an application for apportionment of compensation is made
under this subdivision, the chair of the workers' compensation board
shall appoint an attorney to represent and defend such fund in such
proceedings. Such attorney shall thereafter be given notice of all
proceedings involving the rights or obligations of such fund. Such
attorney may apply to the chair of the board for authority to hire such
medical and other experts and to defray the expense thereof and of such
witnesses as may be necessary to a proper defense of any claim, within
an amount in the discretion of the chair and, if authorized, such amount
shall be a charge against such special disability fund.
The provisions of this chapter with respect to procedure, except as
may be otherwise provided in this subdivision, and the right of appeal
shall be preserved to the claimant and to the employer or his insurance
carrier and to such fund through its attorney as herein provided.
(j) The provisions of this subdivision, except as herein otherwise
provided, shall not be applicable to any case where the accident causing
the subsequent injury or death or the disablement or death from a
subsequent occupational disease shall have occurred prior to the time
this subdivision, as hereby added, takes effect, provided, however, that
any rights that have accrued under former subdivision eight or eight-a
of this section prior to the time this subdivision, as hereby added,
takes effect shall continue to inure to the benefit of any persons
affected thereby as though such subdivisions had not been repealed.
(k) The additional compensation required to be paid by an employer in
the case of the injury of a minor illegally employed, in accordance with
the provisions of subdivisions one and two of section fourteen-a of this
chapter, shall not be reimbursable under the provisions of this
subdivision.
(l) Notwithstanding anything to the contrary in this subdivision, when
an employer or carrier shall have paid additional benefits to an
employee pursuant to subdivision six of section fourteen of this article
as a result of the employee's increased average weekly wages from wages
earned in concurrent employment, reimbursement for all such additional
benefits shall be made to the employer or carrier from the special
disability fund created by this subdivision. It shall not be required
that the employee had, either at the time of hiring or during the
employment, any previous physical condition or disability, nor shall it
be required that the employee's disability be permanent in nature.
Notice of the right to reimbursement shall be filed with the board in
writing prior to the decision making an award, and reimbursement shall
be made periodically, every six months from the decision of the board.
9. Expenses for rehabilitating injured employees. An employee, who as
a result of injury is or may be expected to be totally or partially
incapacitated for a remunerative occupation and who, under the direction
of the state education department is being rendered fit to engage in a
remunerative occupation, may receive additional compensation necessary
for his rehabilitation, not more than thirty dollars per week of which
may be expended for maintenance. Such expense and such of the
administrative expenses of the state education department as are
properly assignable to the expenses of rehabilitating employees entitled
to compensation as a result of injuries under this chapter, shall be
paid out of a special fund created in the following manner: The
employer, or if insured, his insurance carrier, shall pay into the
vocational rehabilitation fund for every case of injury causing death,
in which there are no persons entitled to compensation, the sum of five
hundred dollars where such injury occurred prior to July first, nineteen
hundred sixty-three and the sum of one thousand dollars where such
injury shall occur on or after July first, nineteen hundred sixty-three
and the sum of two thousand dollars where such injury shall occur on or
after September first, nineteen hundred seventy-eight. The commissioner
of taxation and finance and the state comptroller shall be the joint
custodians of this special fund and may invest any surplus moneys
thereof in securities which constitute legal investments for savings
banks under the laws of this state and in interest bearing certificates
of deposit of a bank or trust company located and authorized to do
business in this state or of a national bank located in this state
secured by a pledge of direct obligations of the United States or of the
state of New York in an amount equal to the amount of such certificates
of deposit. He may also sell any of the securities or certificates of
deposit in which such fund is invested if necessary for the proper
administration or in the best interests of such fund. The provisions of
this paragraph shall not apply with respect to policies containing
coverage pursuant to subdivision four-a of section one hundred
sixty-seven of the insurance law relating to every policy providing
comprehensive personal liability insurance on a one, two, three or four
family owner-occupied dwelling.
Disbursements from the vocational rehabilitation fund for the
additional compensation provided for by this section shall be paid by
the commissioner of taxation and finance on warrants drawn by the state
comptroller upon vouchers signed by the commissioner of education or the
deputy commissioner of education provided that the compensation claim
number of an injured employee undergoing vocational rehabilitation has
been verified by the chairman.
Disbursements from the vocational rehabilitation fund for
administrative expenses of the state education department shall be paid
by the commissioner of taxation and finance on warrants drawn by the
state comptroller upon vouchers signed by the commissioner of education
or the deputy commissioner of education.
Assessment on insolvent group self-insured trusts. The
legislature finds that in lieu of the assessments under sections fifteen
and one hundred fifty-one of this chapter that shall no longer be
imposed on closed group self-insured trusts as a result of the chapter
of the laws of two thousand eleven which added this section, the members
of group self-insured trusts that were insolvent upon closing, and that
fail to pay their obligations within the periods specified by this
section, shall be subject to a one time assessment pursuant to this
section. Within thirty days of January first, two thousand sixteen, all
employers who were members of a closed group self-insured trust that was
insolvent at the time the group was closed shall be subject to an
assessment under this section, except for those employers that: (1) have
entered into a settlement agreement or payment plan with the board under
which they have agreed to resolve all liabilities from the membership in
such trust, and remain current in their payments; (2) are members of a
group self-insurer that has transferred all of its liabilities
transferred via a loss portfolio transfer; or (3) have paid all moneys
billed them by the board at the time such assessment is due. For
purposes of this section, insolvent means the inability of a private
group self-insured trust to pay its outstanding lawful obligations under
this chapter as they mature in the regular course of business, as may be
shown by: (i) the self-insurer being underfunded as defined in
subdivision three-a of section fifty of this chapter; and (ii) the sum
of the group self-insured trust's assets, as defined by regulation of
the chair, plus the available security deposit held by the chair
pursuant to subdivision three-a of section fifty of this chapter and
regulation of the chair, being less than the total cost of all of the
group self-insured trust's anticipated workers' compensation
liabilities, as defined by board regulations, that will accrue within
the succeeding six months. The total of such assessment shall be
determined by the percentage of the assessment levied on all employers
under subdivision eight of section fifteen of this article in two
thousand ten that was levied on group self-insured trusts multiplied by
the total amount of the employer's unpaid pro rata share of any deficit
owed by the closed group self-insured employer of which such employer
was a member, as determined by the chair. The amount received on such
assessment shall be used as an offset against the assessments imposed on
other employers under subdivision eight of section fifteen of this
article and section one hundred fifty-one of this chapter in the
calendar year following the year in which it was received.
Death benefits. If the injury causes death, the compensation
shall be known as a death benefit and shall be payable in the amount and
to or for the benefit of the persons following:
1. Funeral expenses. The chair shall prepare and establish a schedule
for the state or schedules limited to defined localities of maximum
charges and fees for such funeral expenses, to be determined in
accordance with, and to be subject to change pursuant to, rules
promulgated by the chair. Before preparing such schedule for the state
or schedules for limited localities, the chair shall request the
president of the New York state funeral directors' association to submit
to the chair a report on the amount of remuneration deemed by such
association to be fair and adequate for the types of funeral services
rendered under this chapter, but consideration shall also be given to
the views of other interested parties. The amounts payable by the
employer for such services shall be the actual fees and charges up to
the maximum established by such schedule. Provided, however, no such
schedule of charges and fees shall apply where a firefighter dies from
injuries received in the line of duty as a direct result of firefighting
or where a police officer dies from injuries received in the line of
duty as a direct result of law enforcement activities, where such
funeral expenses are reasonable. If such funeral expenses shall have
been paid by the claimants entitled to compensation under this section
or by others, the funeral expenses awarded shall be made payable to such
claimants or others, otherwise they shall be made payable to the
undertaker who shall have provided burial. Funeral expenses shall be
awarded in case of all injuries causing death including cases in which
there are no persons entitled to other compensation under this chapter.
1-a. For the purpose of this section, (1) the term dependent blind or
physically disabled as used herein in relation to dependent children
shall be deemed to mean totally blind or physically disabled children
whose disablement is total and permanent, (2) the term surviving spouse
shall be deemed to mean the legal spouse but shall not include a spouse
who has abandoned the deceased, and (3) the term abandoned shall be
deemed to mean such an abandonment as would be sufficient under section
two hundred of the domestic relations law to sustain a judgment of
separation on that ground.
1-b. If there be a surviving spouse and no child of the deceased under
the age of eighteen years and no child of any age dependent blind or
physically disabled, and the death occurs on or after July first,
nineteen hundred forty-eight, and prior to January first, nineteen
hundred seventy-eight, to such spouse forty per centum of the average
wages of the deceased during widowhood or widowerhood with two years'
compensation in one sum, upon remarriage; and where the death occurred
prior to July first, nineteen hundred forty-eight, to such wife (or
dependent husband) thirty per centum of such wages during widowhood (or
dependent widowerhood) with two years' compensation in one sum, upon
remarriage.
1-c. If there be a surviving spouse and no child of the deceased under
the age of eighteen years or under the age of twenty-three years if
enrolled and attending as a full time student in an accredited
educational institution and such enrollment and full time attendance is
certified by such institution and no child of any age dependent blind or
physically disabled, and the death occurs on or after January first,
nineteen hundred seventy-eight, to such spouse sixty-six and two-thirds
per centum of the average wages of the deceased during widowhood or
widowerhood with two years' compensation, in one sum, upon remarriage.
Where the death occurs on or after January first, nineteen hundred
seventy-eight, and the spouse is receiving the survivors insurance
benefits under the social security act, the death benefit payable under
this section shall be reduced in accordance with the provisions of table
No. 1 below by five per centum of the spouse's share of the survivor's
insurance benefits under the social security act for each ten dollars of
deceased's average weekly wage in excess of one hundred dollars provided
that in no case shall such reduction exceed fifty per centum of said
spouse's share of the survivors insurance benefits under the social
security act.
TABLE No. I
Offset provisions applicable in death benefits
where there is a sole surviving spouse
AVERAGE WEEKLY WAGE PERCENTAGE OF SPOUSE'S
SHARE OF SURVIVORS
INSURANCE BENEFITS
over $100 up to and including $110 ................................... 5
over $110 up to and including $120 .................................. 10
over $120 up to and including $130 .................................. 15
over $130 up to and including $140 .................................. 20
over $140 up to and including $150 .................................. 25
over $150 up to and including $160 .................................. 30
over $160 up to and including $170 .................................. 35
over $170 up to and including $180 .................................. 40
over $180 up to and including $190 .................................. 45
over $190 up to and including $200 .................................. 50
over $200 ........................................................... 50
1-d. If there be a surviving spouse of an employee of a private
voluntary hospital killed in a World Trade Center rescue, 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 death,
and no child of the deceased under the age of eighteen years, or under
the age of twenty-three years if enrolled and attending as a full-time
student in an accredited educational institution and such enrollment and
full-time attendance is certified by such institution, and no child of
any age dependent blind or physically disabled, to such spouse
seventy-five per centum of the average wages of the deceased during
widowhood or widowerhood, with two years' compensation, in one sum, upon
remarriage. Where such death occurs, and the spouse is receiving the
survivors insurance benefits under the social security act, the death
benefit payable under this section shall be reduced in accordance with
the provisions of table No. I in subdivision one-c of this section by
five per centum of the spouse's share of the survivor's insurance
benefits under the social security act for each ten dollars of
deceased's average weekly wage in excess of one hundred dollars;
provided that in no case shall such reduction exceed fifty per centum of
such spouse's share of the survivors insurance benefits under the social
security act.
2. If there be a surviving spouse and a surviving child or children of
the deceased under the age of eighteen years or a surviving child or
children of any age dependent blind or physically disabled, and the
death occurs on or after July first, nineteen hundred forty-eight, and
prior to January first, nineteen hundred seventy-eight, to such spouse
thirty per centum of the average wages of the deceased during widowhood
or widowerhood with two years' compensation in one sum, upon remarriage;
and the additional amount of twenty per centum of such wages for each
such child until the age of eighteen years or until the removal of the
dependency of the blind or physically disabled child or children; in
case of the subsequent death or remarriage of such surviving spouse any
surviving child of the deceased employee, at the time under eighteen
years of age or dependent through mental or physical infirmity, shall
have his compensation increased to thirty per centum of such wages, and
the same shall be payable until he shall reach the age of eighteen years
or until such dependent blind or physically disabled condition shall
have been removed; provided that the total amount payable shall in no
case exceed sixty-six and two-thirds per centum of such wages. Upon
statutory termination of compensation payments to all such children, the
compensation of the surviving spouse shall be increased to forty per
centum of such wages with two years' compensation, at such rate, in one
sum, upon remarriage.
If there be a surviving wife (or dependent husband) and any of the
aforementioned surviving children, and the death occurred prior to July
first, nineteen hundred forty-eight, to such wife (or dependent husband)
thirty per centum of the average wages of the deceased during widowhood
(or dependent widowerhood) with two years' compensation in one sum, upon
remarriage; and the additional amount of ten per centum of such wages
for each such child until eighteen years of age or until the removal of
the dependency of the blind or physically disabled child or children; in
case of the subsequent death or remarriage of such surviving wife (or
dependent husband) any surviving child of the deceased shall have his
compensation increased to fifteen per centum of such wages until he
shall reach the age of eighteen years or until such dependent blind or
physically disabled condition shall have been removed; provided that the
total amount payable shall in no case exceed sixty-six and two-thirds
per centum of such wages.
The board may in its discretion require the appointment of a guardian
for the purpose of receiving the compensation of a minor child or a
dependent blind or physically disabled child. In the absence of such a
requirement by the board the appointment of a guardian for such purposes
shall not be necessary.
2-a. If there be a surviving spouse and a surviving child under the
age of eighteen years or under the age of twenty-three years if enrolled
and attending as a full time student in an accredited educational
institution and such enrollment and full time attendance is certified by
such institution or a surviving child of any age dependent blind or
physically disabled and the death occurs on or after January first,
nineteen hundred seventy-eight, to such spouse thirty-six and two-thirds
per centum of the average wages of the deceased during widowhood or
widowerhood with two years' compensation in one sum, upon remarriage;
and thirty per centum of such wages to such child under the age of
eighteen years or under the age of twenty-three years if enrolled and
attending as a full time student in an accredited educational
institution and such enrollment and full time attendance is certified by
such institution or a surviving child of any age dependent blind or
physically disabled; in the case of the subsequent death of such
surviving spouse the surviving child shall have his compensation
increased to sixty-six and two-thirds per centum of such wages and the
same shall be payable so long as he is under the age of eighteen years
or under the age of twenty-three years if enrolled and attending as a
full time student in an accredited educational institution and such
enrollment and full time attendance is certified by such institution or
a surviving child of any age dependent blind or physically disabled;
upon statutory termination of compensation payable to such child, the
compensation of the surviving spouse shall be increased to sixty-six and
two-thirds per centum of such wages with two years' compensation, at
such rate, in one sum, upon remarriage. Upon remarriage of such
surviving spouse, the surviving child shall continue to receive thirty
per centum of such wages. Where the death occurs on or after January
first, nineteen hundred seventy-eight and the spouse is receiving
survivors insurance benefits under the social security act, the death
benefit payable under this section shall be reduced by five per centum
of the spouse's share of the survivors insurance benefits under the
social security act for each ten dollars of deceased's average weekly
wage in excess of one hundred dollars provided that in no case shall
such reduction exceed fifty per centum of said spouse's share of the
survivors insurance benefits under the social security act as set forth
in table No. I below.
TABLE No. I
Offset provisions applicable in death benefits
where there is a surviving spouse and one child
AVERAGE WEEKLY WAGE PERCENTAGE OF SPOUSE'S
SHARE OF SURVIVORS
INSURANCE BENEFITS
over $100 up to and including $110 ................................... 5
over $110 up to and including $120 .................................. 10
over $120 up to and including $130 .................................. 15
over $130 up to and including $140 .................................. 20
over $140 up to and including $150 .................................. 25
over $150 up to and including $160 .................................. 30
over $160 up to and including $170 .................................. 35
over $170 up to and including $180 .................................. 40
over $180 up to and including $190 .................................. 45
over $190 up to and including $200 .................................. 50
over $200 ........................................................... 50
If there be a surviving spouse and two or more surviving children
under the age of eighteen years or under the age of twenty-three years
if enrolled and attending as a full time student in an accredited
educational institution and such enrollment and full time attendance is
certified by such institution or a surviving child or children of any
age dependent blind or physically disabled and a death occurs on or
after January first, nineteen hundred seventy-eight, to such spouse
thirty-six and two-thirds per centum of the average wage of the deceased
during widowhood or widowerhood with two years' compensation in one sum
upon remarriage; and thirty per centum of such wages to such children
under the age of eighteen years or under the age of twenty-three years
if enrolled and attending as a full time student in an accredited
educational institution and such enrollment and full time attendance is
certified by such institution or a surviving child or children of any
age dependent blind or physically disabled, share and share alike; in
case of the subsequent death of such surviving spouse the surviving
children shall have their compensation increased to sixty-six and
two-thirds per centum of such wages and the aggregate sum shall be
payable, share and share alike, so long as they are under the age of
eighteen years or under the age of twenty-three years if enrolled and
attending as a full time student in an accredited educational
institution and such enrollment and full time attendance is certified by
such institution or a surviving child or children of any age dependent
blind or physically disabled. Upon remarriage of such surviving spouse,
if there be two surviving children each shall receive twenty-five per
centum of such wages, and if there are surviving more than two children
under the age of eighteen years or under the age of twenty-three if
enrolled and attending as a full time student in an accredited
educational institution and such enrollment and full time attendance is
certified by such institution or a surviving child or children of any
age dependent blind or physically disabled sixty-six and two-thirds per
centum of such wages share and share alike. Upon statutory termination
of compensation payable to such children, the compensation of the
surviving spouse shall be increased to sixty-six and two-thirds per
centum of such wages with two years' compensation, at such rate, in one
sum, upon remarriage. Where the death occurs on or after January first,
nineteen hundred seventy-eight, and the spouse is receiving survivors
insurance benefits under the social security act, the death benefits
payable under this section shall be reduced by five per centum of the
spouse's share of the survivors insurance benefits under the social
security act for each ten dollars of deceased's average weekly wage in
excess of one hundred fifty dollars provided that in no case shall such
reduction exceed fifty per centum of said spouse's share of the
survivors insurance benefits under the social security act as set forth
in table No. II below.
TABLE No. II
Offset provisions applicable in death benefits
where there is a surviving spouse and two or more children
AVERAGE WEEKLY WAGE PERCENTAGE OF SPOUSE'S
SHARE OF SURVIVORS
INSURANCE BENEFITS
over $150 up to and including $160 ................................... 5
over $160 up to and including $170 .................................. 10
over $170 up to and including $180 .................................. 15
over $180 up to and including $190 .................................. 20
over $190 up to and including $200 .................................. 25
over $200 up to and including $210 .................................. 30
over $210 up to and including $220 .................................. 35
over $220 up to and including $230 .................................. 40
over $230 up to and including $240 .................................. 45
over $240 up to and including $250 .................................. 50
over $250 ........................................................... 50
2-b. If there be a surviving spouse of an employee of a private
voluntary hospital killed in a World Trade Center rescue, 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 death,
and a surviving child under the age of eighteen years, or under the age
of twenty-three years if enrolled and attending as a full-time student
in an accredited educational institution and such enrollment and
full-time attendance is certified by such institution, or a surviving
child of any age dependent blind or physically disabled, to such spouse
forty per centum of the average wages of the deceased during widowhood
or widowerhood, with two years' compensation in one sum, upon
remarriage; and thirty-five per centum of such wages to such child under
the age of eighteen years, or under the age of twenty-three years if
enrolled and attending as a full-time student in an accredited
educational institution and such enrollment and full-time attendance is
certified by such institution, or a surviving child of any age dependent
blind or physically disabled; in the case of the subsequent death of
such surviving spouse the surviving child shall have his or her
compensation increased to seventy-five per centum of such wages and the
same shall be payable so long as he or she is under the age of eighteen
years, or under the age of twenty-three years if enrolled and attending
as a full-time student in an accredited educational institution and such
enrollment and full-time attendance is certified by such institution, or
a surviving child of any age dependent blind or physically disabled;
upon statutory termination of compensation payable to such child, the
compensation of the surviving spouse shall be increased to seventy-five
per centum of such wages with two years' compensation, at such rate, in
one sum, upon remarriage. Upon remarriage of such surviving spouse, the
surviving child shall continue to receive thirty-five per centum of such
wages. Where such death occurs, and the spouse is receiving survivors
insurance benefits under the social security act, the death benefit
payable under this section shall be reduced by five per centum of the
spouse's share of the survivors insurance benefits under the social
security act for each ten dollars of deceased's average weekly wage in
excess of one hundred dollars; provided that in no case shall such
reduction exceed fifty per centum of such spouse's share of the
survivors insurance benefits under the social security act as set forth
in table No. I in subdivision one-c of this section. If there be a
surviving spouse of an employee of a private voluntary hospital killed
in a World Trade Center rescue, 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 death, and two or more
surviving children under the age of eighteen years, or under the age of
twenty-three years if enrolled and attending as a full-time student in
an accredited educational institution and such enrollment and full-time
attendance is certified by such institution, or a surviving child or
children of any age dependent blind or physically disabled and a death
occurs on or after September eleventh, two thousand one, to such spouse
forty per centum of the average wage of the deceased during widowhood or
widowerhood with two years' compensation in one sum upon remarriage; and
thirty-five per centum of such wages to such children under the age of
eighteen years, or under the age of twenty-three years if enrolled and
attending as a full-time student in an accredited educational
institution and such enrollment and full-time attendance is certified by
such institution, or a surviving child or children of any age dependent
blind or physically disabled, share and share alike; in case of the
subsequent death of such surviving spouse the surviving children shall
have their compensation increased to seventy-five per centum of such
wages and the aggregate sum shall be payable, share and share alike, so
long as they are under the age of eighteen years, or under the age of
twenty-three years if enrolled and attending as a full-time student in
an accredited educational institution and such enrollment and full-time
attendance is certified by such institution, or a surviving child or
children of any age dependent blind or physically disabled. Upon
remarriage of such surviving spouse, if there be two surviving children
each shall receive thirty-seven and one-half per centum of such wages,
and if there are surviving more than two children under the age of
eighteen years, or under the age of twenty-three if enrolled and
attending as a full-time student in an accredited educational
institution and such enrollment and full-time attendance is certified by
such institution, or a surviving child or children of any age dependant
blind or physically disabled, seventy-five per centum of such wages
share and share alike. Upon statutory termination of compensation
payable to such children, the compensation of the surviving spouse shall
be increased to seventy-five per centum of such wages with two years'
compensation, at such rate, in one sum, upon remarriage. Where the death
occurs on or after September eleventh, two thousand one, and the spouse
is receiving survivors insurance benefits under the social security act,
the death benefits payable under this section shall be reduced by five
per centum of the spouse's share of the survivors insurance benefits
under the social security act for each ten dollars of deceased's average
weekly wage in excess of one hundred fifty dollars; provided that in no
case shall such reduction exceed fifty per centum of said spouse's share
of the survivors insurance benefits under the social security act as set
forth in table No. II in subdivision two-a of this section.
3. If there be a surviving child or children of the deceased under the
age of eighteen years or a dependent blind or physically disabled child
or children of any age, but no surviving spouse then where the death
occurs on or after July first, nineteen hundred forty-eight, and prior
to January first, nineteen hundred seventy-eight, for the support of
each such child until the age of eighteen years, or until the removal of
the dependency of such blind or physically disabled child or children,
thirty per centum of the wages of the deceased, and where the death
occurred prior to July first, nineteen hundred forty-eight, for the
support of each such child until the age of eighteen years, or until the
removal of the dependency of such blind or physically disabled child or
children, fifteen per centum of the wages of the deceased; provided that
the aggregate shall in no case exceed sixty-six and two-thirds per
centum of such wages.
3-a. If there be a surviving child or children of the deceased under
the age of eighteen years or under the age of twenty-three years if
enrolled and attending as a full time student in an accredited
educational institution and such enrollment and full time attendance is
certified by such institution or a dependent blind or physically
disabled child or children of any age, but no surviving spouse then
where the death occurs on or after January first, nineteen hundred
seventy-eight, for the support of such child or children until the age
of eighteen years, or under the age of twenty-three years if enrolled
and attending as a full time student in an accredited educational
institution and such enrollment and full time attendance is certified by
such institution or until the removal of the dependency of such blind or
physically disabled child or children, sixty-six and two-thirds per
centum of the wages of the deceased. Where there are two or more
children, the compensation payable shall be divided among such children
share and share alike.
3-b. If there be a surviving child or children, of an employee of a
private voluntary hospital killed in a World Trade Center rescue, 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
death, under the age of eighteen years, or under the age of twenty-three
years if enrolled and attending as a full-time student in an accredited
educational institution and such enrollment and full-time attendance is
certified by such institution, or a dependent blind or physically
disabled child, or children of any age, but no surviving spouse then,
where such death occurs, for the support of each such child until the
age of eighteen years, or under the age of twenty-three years if
enrolled and attending as a full-time student in an accredited
educational institution and such enrollment and full-time attendance is
certified by such institution or until the removal of the dependency of
such blind or physically disabled child or children, seventy-five per
centum of the wages of the deceased. Where there are two or more
children, the compensation payable shall be divided among such children
share and share alike.
4. If there be no surviving spouse or child under the age of eighteen
years, or dependent blind or physically disabled child of any age, or if
the amount payable to surviving spouse and to children under the age of
eighteen years or such dependent blind or physically disabled children
shall be less in the aggregate than sixty-six and two-thirds per centum
of the average wages of the deceased, then where the death occurs on or
after July first, nineteen hundred forty-eight, and prior to January
first, nineteen hundred seventy-eight, for the support of grandchildren
or brothers and sisters under the age of eighteen years, if dependent
upon the deceased at the time of the accident, twenty-five per centum of
such wages for the support of each such person until the age of eighteen
years; and for the support of each parent, or grandparent, of the
deceased if dependent upon him at the time of the accident, forty per
centum of such wages during such dependency; and where the death
occurred prior to July first, nineteen hundred forty-eight, to such
dependent grandchildren or brothers and sisters, fifteen per centum of
such wages until eighteen years of age, and to such dependent parent or
grandparent, twenty-five per centum of such wages during dependency. But
in no case shall the aggregate amount payable under this subdivision
exceed the difference between sixty-six and two-thirds per centum of
such wages, and the amount payable as hereinbefore provided to surviving
spouse or for the support of surviving child or children.
4-a. If there be no surviving spouse or child under the age of
eighteen years or under the age of twenty-three years if enrolled and
attending as a full time student in an accredited educational
institution and such enrollment and full time attendance is certified by
such institution or dependent blind or physically disabled child of any
age, then where the death occurs on or after January first, nineteen
hundred seventy-eight, for the support of grandchildren or brothers and
sisters if dependent upon the deceased at the time of the accident,
under the age of eighteen years, or under the age of twenty-three years
if enrolled and attending as a full time student in an accredited
educational institution and such enrollment and full time attendance is
certified by such institution, or blind or physically disabled
grandchildren or brothers and sisters of any age, twenty-five per centum
of such wages for the support of each such person until the age of
eighteen years; or until the age of twenty-three years if enrolled and
attending as a full time student in an accredited educational
institution or until the removal of the dependency of such blind or
physically disabled grandchildren or brothers and sisters, and such
enrollment and full time attendance is certified by such institution and
for the support of each parent, or grandparent, of the deceased if
dependent upon him or her at the time of the accident, forty per centum
of such wages during such dependency. But in no case shall the aggregate
amount payable under this subdivision exceed sixty-six and two-thirds
per centum of such wages.
4-b. If there be no surviving spouse or child under the age of
eighteen years or under the age of twenty-three years if enrolled and
attending as a full time student in an accredited educational
institution and such enrollment and full time attendance is certified by
such institution or dependent blind or physically disabled child of any
age or grandchildren or brothers and sisters if dependent upon the
deceased at the time of the accident, under the age of eighteen years,
or under the age of twenty-three years if enrolled and attending as a
full time student in an accredited educational institution and such
enrollment and full time attendance is certified by such institution or
disabled blind or physically disabled grandchildren or brothers and
sisters of any age, then a sum of fifty thousand dollars shall be paid
to the deceased's surviving parents or if there be no surviving parents
to the deceased's estate.
4-c. If there be no surviving spouse or child, or children of an
employee of a private voluntary hospital killed in a World Trade Center
rescue, 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 death, under the age of eighteen years, or under the
age of twenty-three years if enrolled and attending as a full-time
student in an accredited educational institution and such enrollment and
full-time attendance is certified by such institution, or dependent
blind or physically disabled child of any age, then where the death
occurs on or after September eleventh, two thousand one, for the support
of grandchildren or brothers and sisters if dependent upon the deceased
at the time of the accident, under the age of eighteen years, or under
the age of twenty-three years if enrolled and attending as a full-time
student in an accredited educational institution and such enrollment and
full-time attendance is certified by such institution, or blind or
physically disabled grandchildren or brothers and sisters of any age,
twenty-five per centum of such wages for the support of each such person
until the age of eighteen years; or until the age of twenty-three years
if enrolled and attending as a full-time student in an accredited
educational institution, or until the removal of the dependency of such
blind or physically disabled grandchildren or brothers and sisters, and
such enrollment and full-time attendance is certified by such
institution and for the support of each parent, or grandparent, of the
deceased if dependent upon him or her at the time of the accident, forty
per centum of such wages during such dependency. But in no case shall
the aggregate amount payable under this subdivision exceed seventy-five
per centum of such wages.
4-d. If there be no surviving spouse or child, or children of an
employee of a private voluntary hospital killed in a World Trade Center
rescue, 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 death, under the age of eighteen years, or under the
age of twenty-three years if enrolled and attending as a full-time
student in an accredited educational institution and such enrollment and
full-time attendance is certified by such institution, or dependent
blind or physically disabled child of any age, or grandchildren or
brothers and sisters if dependent upon the deceased at the time of the
accident, under the age of eighteen years, or under the age of
twenty-three years if enrolled and attending as a full-time student in
an accredited educational institution and such enrollment and full-time
attendance is certified by such institution, or disabled blind or
physically disabled grandchildren or brothers and sisters of any age,
then a sum of fifty thousand dollars shall be paid to the deceased's
surviving parents or if there be no surviving parents to the deceased's
estate.
5. Any excess of wages over: (1) seven hundred fifty dollars shall not
be taken into account in computing compensation under this section in
cases where the death occurs on or after July first, two thousand seven,
(2) eight hundred twenty-five dollars shall not be taken into account in
computing compensation under this section in cases where the death
occurs on or after July first, two thousand eight, (3) nine hundred
dollars shall not be taken into account in computing compensation under
this section in cases where the death occurs on or after July first, two
thousand nine, and (4) where the death occurs on or after July first,
two thousand ten, or when the death occurs on or after July first of
each succeeding year, an amount equal to the New York state average
weekly wage for the year in which it is reported shall not be taken into
account in computing compensation under this section. Any excess of
wages over five hundred ten dollars and five cents per week shall not be
taken into account in computing compensation under this section in cases
where the death occurs on or after July first, nineteen hundred ninety,
nor shall any excess of wages over five hundred twenty-five dollars per
week be taken into account in computing compensation pursuant to this
section in cases where death occurs on or after July first, nineteen
hundred ninety-one, nor shall any excess of wages over six hundred
dollars per week be taken into account in computing compensation
pursuant to this section in cases where death occurs on or after July
first, nineteen hundred ninety-two with the exception that wages earned
over six hundred dollars per week shall be taken into account in
computing compensation under this section in cases involving an employee
of a private voluntary hospital resulting from a World Trade Center
rescue, 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 death; nor shall any excess of wages over three
hundred eighty-two dollars and fifty cents per week be taken into
account in computing compensation under this section in cases where the
death occurs on or after July first, nineteen hundred eighty-three, nor
shall any excess of wages over four hundred twelve dollars and fifty
cents per week be taken into account in computing compensation under
this section in cases where the death occurs on or after July first,
nineteen hundred eighty-four, nor shall any excess of wages over four
hundred fifty dollars per week be taken into account in computing
compensation under this section in cases where the death occurs on or
after July first, nineteen hundred eighty-five; nor shall any excess of
wages over one hundred eighty-seven dollars and fifty cents per week on
or after January first, nineteen hundred seventy-eight or over two
hundred seventy dollars per week on or after July first, nineteen
hundred seventy-eight or over three hundred twenty-two dollars and fifty
cents per week on or after January first, nineteen hundred seventy-nine,
and prior to July first, nineteen hundred eighty-three, be taken into
account in computing compensation under this section nor shall any
excess of wages over six hundred and seventeen dollars and fifty cents a
month be taken into account in computing compensation under this section
in cases where the death occurred on or after July first, nineteen
hundred seventy-four, and prior to January first, nineteen hundred
seventy-eight, nor shall any excess of wages over five hundred and
twenty dollars a month be taken into account in computing compensation
in cases where death occurred on or after July first, nineteen hundred
seventy and prior to July first, nineteen hundred seventy-four, nor
shall any excess of wages over four hundred and fifty-five dollars a
month be taken into account in computing compensation in cases where
death occurred on or after July first, nineteen hundred sixty-eight and
prior to July first, nineteen hundred seventy, nor shall any excess of
wages over three hundred and ninety dollars a month be taken into
account in computing compensation in cases where death occurred on or
after July first, nineteen hundred sixty-five and prior to July first,
nineteen hundred sixty-eight, nor shall any excess of wages over three
hundred and fifty-seven dollars and fifty cents a month be taken into
account in computing compensation in cases where death occurred on or
after July first, nineteen hundred sixty-two and prior to July first,
nineteen hundred sixty-five, nor shall any excess of wages over three
hundred and twenty-five dollars a month be taken into account in
computing compensation in cases where death occurred on or after July
first, nineteen hundred sixty and prior to July first, nineteen hundred
sixty-two, nor shall any excess of wages over two hundred and ninety-two
dollars and fifty cents a month be taken into account in computing
compensation where death occurred on or after July first, nineteen
hundred fifty-eight and prior to July first, nineteen hundred sixty, nor
shall any excess of wages over two hundred and sixty dollars a month be
taken into account in computing compensation where death occurred on or
after July first, nineteen hundred fifty-four and prior to July first,
nineteen hundred fifty-eight, nor shall any excess of wages over two
hundred and twenty-seven dollars and fifty cents a month be taken into
account in computing compensation where death occurred on or after July
first, nineteen hundred forty-eight and prior to July first, nineteen
hundred fifty-four, nor shall any excess of wages over one hundred and
eighty-two dollars a month be taken into account in computing
compensation where the death occurred on or after June first, nineteen
hundred forty-six and prior to July first, nineteen hundred forty-eight.
When death occurred on or after July first, nineteen hundred forty-eight
and prior to January first, nineteen hundred seventy-eight, computing
compensation to the widow or widower and children of a deceased employee
in no event shall wages be deemed to be less than one hundred and thirty
dollars a month. All questions of dependency shall be determined as of
the time of the accident. When death occurred on or after January first,
nineteen hundred seventy-eight, in no event shall wages be deemed to be
less than forty-five dollars a week in computing compensation to the
widow or widower and/or children of the deceased employee.
6. If there be a person entitled to death benefits under the
provisions of this section, who shall be under the age of eighteen
years, and who shall be an incarcerated individual of any institution
and a public charge upon the department of social services of the city
of New York, or any other department or body, the benefits allowed
hereunder shall be payable to the said department of public welfare of
the city of New York or any other department or body to the extent of
the reasonable charges for the care and maintenance, during the
continuance as a public charge in said institution, of said beneficiary
and until the said person shall have attained the age of eighteen years.
Any sum or sums remaining after the said payment out of the benefits
shall be distributed as provided by the other subdivisions of this
section.
7. In computing the offsets under subdivisions one-c and two-a of this
section any increase in survivors insurance benefits under social
security that occurs after the date of death shall not be considered,
and any such offset shall be equally applicable to the survivors
insurance benefits under the social security act which are received
retroactively but such offset shall not apply to increases of such
benefits received retroactively.
Death benefits due to diesel exposure. Where death is due in
whole or part to any cancer resulting from a hazardous exposure to
diesel exhaust, a claim for death benefits shall not be disallowed as
barred by section eighteen or section twenty-eight of this article if
such claim is filed within one year of the effective date of this
section. Such claims may be filed after such period in accordance with
section eighteen and section twenty-eight of this article.
Noncitizens. Compensation under this chapter to noncitizens not
residents or about to become nonresidents of the United States or
Canada, shall be the same in amount as provided for residents, except
that dependents in any foreign country shall be limited to surviving
spouse and child or children, or, if there is no surviving spouse or
child or children, to surviving father or mother whom the employee has
supported, either wholly or in part, for the period of one year prior to
the date of the accident.
Limited English proficiency. 1. In accordance with section
two hundred two-a of the executive law, the board shall provide
translation of (a) all documents and forms published by the board that
injured employees complete; (b) all board documents that provide general
information to injured employees on the process of applying for workers'
compensation benefits; and (c) all other vital documents as defined by
subdivision five of section two hundred two-a of the executive law
relevant to services offered by the agency.
2. The board shall provide interpretation services to injured
employees with respect to its provision of services, information and/or
benefits.
3. The board shall:
(a) develop a language access plan pursuant to subdivision three of
section two hundred two-a of the executive law and submit such plan to
the office of general services;
(b) publish the board's language access plan on the board's website;
and
(c) designate a language access coordinator who will work with the
office of general services to ensure compliance with the requirements of
this section and section two hundred two-a of the executive law.
4. The language access coordinator for the board shall monitor the
board's compliance with this section by annually collecting data on the
provision of language assistance services, the availability of
translated materials, whether signage is properly posted, and any other
relevant measures.
Notice of injury or death. Notice of an injury or death for
which compensation is payable under this chapter shall be given to the
employer within thirty days after the accident causing such injury, and
also in case of the death of the employee resulting from such injury,
within thirty days after such death. Such notice may be given by any
person claiming to be entitled to compensation, or by some one in his
behalf. The notice shall be in writing, and contain the name and address
of the employee, and state in ordinary language the time, place, nature
and cause of the injury, and be signed by him or by a person on his
behalf or, in case of death, by any one or more of his dependents, or by
a person, on their behalf. It shall be given to the employer by
delivering it to him or sending it by mail, by registered letter,
addressed to the employer at his or its last known place of business;
provided that, if the employer be a partnership then such notice may be
so given to any one of the partners, and if the employer be a
corporation, then such notice may be given to any agent or officer
thereof upon whom legal process may be served, or any agent in charge of
his business in the place where the injury occurred. The failure to give
notice of injury or notice of death unless excused by the board either
on the ground that notice for some sufficient reason could not have been
given, or on the ground that the employer, or his or its agents in
charge of the business in the place where the accident occurred or
having immediate supervision of the employee to whom the accident
happened, had knowledge of the accident or death, or on the ground that
the employer has not been prejudiced thereby, shall be a bar to any
claim under this chapter, but the employer and the insurance carrier
shall be deemed to have waived such notice unless the objection to the
failure to give such notice or the insufficiency thereof, is raised
before the board on the first hearing of the claim field by such injured
employee, or his or her dependents at which all parties in interest are
present, or represented, and at which the claimant, or principal
beneficiary, testifies.
Notice: The New York Jockey Injury Compensation Fund, Inc.
Wherever in this chapter it shall be required that notice be given to an
employer, except for claims involving section fourteen-a of the workers'
compensation law such notice requirement shall be deemed satisfied by
giving notice to the New York Jockey Injury Compensation Fund, Inc., in
connection with an injury to a jockey, apprentice jockey or exercise
person licensed under article two or four of the racing, pari-mutuel
wagering and breeding law, and at the election of the New York Jockey
Injury Compensation Fund, Inc., with the approval of the New York state
gaming commission, an employee of a licensed trainer or owner, who,
pursuant to section two of this chapter, is an employee of all owners
and trainers licensed or required to be licensed under article two or
four of the racing, pari-mutuel wagering and breeding law and of the
fund. In a claim involving section fourteen-a of the workers'
compensation law such required notice shall be given to the employing
owner and/or trainer of the fund.
Notice; the New York black car operators' injury compensation
fund, inc. Whenever notice is required to be given to an employer
pursuant to this chapter, such requirement shall be satisfied, with
respect to an accident or injury to a black car operator, as defined in
article six-F of the executive law, occurring on or after the fund
liability date, as defined in such article, by giving such notice to the
New York black car operators' injury compensation fund, inc., except
that in the case of a claim arising under section fourteen-a of this
article, notice must be given to the fund and to the central dispatch
facility, as defined in article six-F of the executive law, for which
the black car operator was performing services at the time of the
accident.
Independent livery bases. 1. For purposes of this section,
"covered services," "livery," "livery driver," "livery registrant,"
"livery base," "local taxi and limousine commission" and "responsible
person" shall have the meanings set forth in article six-G of the
executive law.
2. The board shall designate a livery base as an independent livery
base, only if the base meets each of the following criteria:
(a) The base submits an affirmation sworn under penalty of perjury by
an officer or director and such other individuals as the chair may
direct, on such form as is provided by the board, which attests to the
truth of such criteria as are set by the chair by regulation, or in the
absence of such regulation attests to the truth of the following: (i)
the base is not, directly or indirectly, including through any director
or officer, the owner or registrant of any livery dispatched by the
base; (ii) all livery drivers dispatched by the base provide and select
their own clothing; (iii) all livery drivers dispatched by the base set
their own hours and days of work; (iv) all livery drivers choose which
dispatches or fares to accept, and no livery driver suffers any
consequence by the livery base for failing to respond to its dispatch;
(v) livery drivers dispatched by the base may enter into a contractual
relationship with one or more other bases; (vi) no livery driver
dispatched by the base receives an internal revenue service form W-2
from such base, or is subject to the withholding of any federal income
taxes by the base; (vii) the base does not pay for the fuel or
maintenance of any liveries; (viii) the base does not impose any fines
and penalties on any livery drivers, except that it may decline to
provide further dispatches for misconduct during any dispatch; and (ix)
no livery driver is subject to being fired or discharged by the livery
base. The base shall agree to provide the board with immediate notice of
any inaccuracies in the affirmation, including any failure to adhere to
any of the matters set forth on its affirmation.
(b) The board shall alter the criteria set forth in paragraph (a) of
this subdivision to conform to any statutory definition for employer or
independent contractor applicable to livery drivers.
(c) The livery shall provide the board and local taxi and limousine
commission, and all livery registrants or drivers whose liveries may be
dispatched by the livery base, with a copy of a written policy in plain
language, in the primary language spoken by each registrant or driver,
setting forth all matters to which it has attested on the affirmation
provided for in paragraph (a) of this subdivision. The failure to
distribute such a policy shall not have any legal consequence except in
accordance with section one hundred sixty-hhh of the executive law.
(d) The base shall pay into the independent livery fund such payments
as are directed by the independent livery driver benefit fund pursuant
to article six-G of the executive law.
(e) The base may not owe any payments into the fund established under
section twenty-six-a of this article, or otherwise owe any moneys under
this chapter, unless it has an agreement with the board to repay the
money owed, or to relieve it of the obligation to make any such
payments.
(f) The base shall maintain such records as are provided for by
regulation of the chair.
(g) The base shall permit the local taxi and limousine commission, the
independent livery fund and any carrier providing compensation under
this title for the independent livery fund to audit its books and
records during regular business hours solely as necessary to determine
compliance with this section, or to determine the amount owed to the
fund.
(h) No responsible persons of the livery base may have been a
responsible person of a base whose status as an independent livery base
was revoked within the previous five years, or which has no agreement on
moneys owed in as required by paragraph (e) of this subdivision, unless
such criteria are waived in the discretion of the board.
3. The board may revoke any livery base's status as an independent
livery base if it determines that the base is in violation of any of the
criteria set forth in subdivision one of this section, or may suspend
the livery base's status as an independent livery base pending the
base's compliance with any such criteria.
4. An independent livery base's obligations under this chapter
regarding the securing and provision of workers' compensation benefits
for any livery driver it dispatches shall be satisfied in full by
compliance with the requirements imposed upon an independent livery base
by this section and article six-G of the executive law. Insurance
coverage directly procured by any independent livery base for the
purpose of satisfying the requirements of this chapter with respect to
employees of the central livery dispatch facility shall not include
coverage of any livery driver to the extent that the livery driver is
covered under coverage secured by the New York livery drivers' injury
compensation fund pursuant to the requirements of article six-G of the
executive law except as provided in that article.
5. Any livery base that is not an independent livery base shall be
deemed an employer of any livery driver it dispatches for purposes of
this article.
6. A livery base's designation as an employer or independent livery
base in accordance with this section shall not be considered in any
determination as to whether a livery base is an employer or independent
contractor under any other provision of law. The livery base's
designation under this section shall not be admissible in any court or
administrative proceeding in this state, except any proceeding under
this article or article six-G of the executive law, to demonstrate the
base's status as an employer or independent contractor.
7. For all injuries or illnesses resulting to a livery driver arising
out of covered services for an independent livery base, and for which
compensation must be paid in accordance with section one hundred
sixty-ddd of the executive law, the independent livery driver benefit
fund shall be deemed the employer for all purposes of this chapter.
8. An independent livery driver that sustains injury as a result of
the use or operation of an automobile during a dispatch by an
independent livery base may obtain recovery in accordance with article
fifty-one of the insurance law, and shall not be entitled to workers'
compensation benefits except as set forth in section one hundred
sixty-ddd of the executive law.
9. An independent livery driver who submits a claim for recovery in
accordance with article fifty-one of the insurance law pursuant to
subdivision eight of this section shall be subject to local taxi and
limousine commission rules prohibiting driving until he or she has
recovered from his or her injury. Any authorized insurer required to
accept such claims shall be entitled to apply the pre-authorized
procedures, medical treatment guidelines and other applicable provisions
of this article.
Physical examination. An injured employee claiming or entitled
to compensation shall submit to such physical examination as the
chairman or the board may require. The place, or places, shall be
reasonably convenient for him. No physician selected by the employer,
carrier or employee shall be present at or participate in any manner in
such examination, but such employer or carrier shall, upon request, be
entitled to have the employee examined immediately thereafter and upon
the same premises by a qualified physician or physicians in the presence
of such physician as the employee may select, if any. Proceedings shall
be suspended and no compensation shall be payable for any period during
which the employee may refuse to submit to examination.
Physicians not to accept fees from carriers. No physician or
surgeon in the employ of the board for the purpose of making the
examinations required by section nineteen of this chapter, shall, during
such employment, be employed by or accept or participate in any fee from
any insurance company authorized to write workmen's compensation
insurance in this state or from any self-insurer, if such employment or
fee relates to a workmen's compensation claim or otherwise except as
herein provided. Any physician or surgeon so employed by the board who
violates the provisions of this section shall be guilty of a
misdemeanor.
The foregoing provisions of this section limiting and restricting the
employment of physicians or surgeons in the employ of the board and
their acceptance or participation in fees shall not be applicable to
medical treatment rendered to their patients who are or may be claimants
under article nine of this chapter, provided, however, that any such
physician or surgeon shall be disqualified from testifying as a witness
in any proceeding before the board or its referees in connection with
such claims.
Treatment by physicians in employ of board. No doctor,
physician or surgeon in the employ of the board shall solicit or treat
any claimant under this chapter, or own or operate any clinic, giving
baking and massage, physio-therapy, or other treatment to such
claimants. Such doctors, physicians and surgeons shall not recommend
that a claimant be treated by any particular physician or surgeon, or
receive baking and massage, physio-therapy or other treatment from any
particular person, clinic or hospital. Any such physician or surgeon may
recommend the necessary treatment needed and the board shall direct the
employer or carrier to provide such treatment, but the board shall not
designate a particular physician, surgeon, clinic or hospital to provide
the treatment. The employer or carrier shall furnish the prescribed
treatment and upon their failure so to do within five days after the
direction is made, the claimant may secure the same at the expense of
the employer or carrier. Any physician or surgeon so employed by the
board who violates the provisions of this section shall be guilty of a
misdemeanor.
The foregoing provisions of this section prohibiting physicians or
surgeons in the employ of the board from recommending that a claimant be
treated by any particular physician or surgeon shall not be applicable
to recommendations for specialist care of their patients who are or may
be claimants under article nine of this chapter.
Actions against health services personnel; defense and
indemnification. The provisions of section seventeen of the public
officers law shall apply to actions and proceedings, against physicians,
nurses and other employees of the board whose duties involve medical
examinations under this chapter and the volunteer firefighters' benefit
law or other health services, arising out of emergency medical treatment
given to board employees while at work or to claimants, their attorneys,
licensed representatives, witnesses, employers, their representatives
and representatives of carriers, while visiting the offices of the board
or the hearing points at which proceedings are conducted or any other
person properly on board premises.
Determination of claims for compensation. 1. At any time
after the expiration of the first seven days of disability on the part
of an injured employee, or at any time after the employee's death, a
claim for compensation may be presented to the employer or to the chair.
The board shall have full power and authority to determine all questions
in relation to the payment of claims presented to it for compensation
under the provisions of this chapter. The chair or board shall make or
cause to be made such investigation as it deems necessary, and upon
application of either party, shall order a hearing, and within thirty
days after a claim for compensation is submitted under this section, or
such hearing closed, shall make or deny an award, determining such claim
for compensation, and file the same in the office of the chair.
Immediately after such filing the chair shall send to the parties a copy
of the decision. Upon a hearing pursuant to this section either party
may present evidence and be represented by counsel. The decision of the
board shall be final as to all questions of fact, and, except as
provided in section twenty-three of this article, as to all questions of
law. Except as provided in section twenty-seven of this article, all
awards of the board shall draw simple interest from thirty days after
the making thereof at the rate provided in section five thousand four of
the civil practice law and rules. Whenever a hearing or proceeding for
the determination of a claim for compensation is begun before a referee,
pursuant to the provisions of this chapter, such hearing or proceeding
or any adjourned hearing thereon shall continue before the same referee
until a final determination awarding or denying compensation, except in
the absence, inability or disqualification to act of such referee, or
for other good cause, in which event such hearing or proceeding may be
continued before another referee by order of the chair or board.
2. (a) Notwithstanding subdivision one of this section, any claim for
compensation by (i) judges, conciliators, and managerial or confidential
employees of the workers' compensation board and state insurance fund
who are allocated to a grade M1 or above pursuant to section one hundred
thirty of the civil service law, (ii) the chair, vice-chair and members
of the workers' compensation board, and (iii) the executive director,
deputy executive directors and members of the board of commissioners of
the state insurance fund shall not be within the jurisdiction of the
workers' compensation board but instead shall be determined by a neutral
outside arbitration process as provided by regulations promulgated by
the chair. Such claims shall be filed in the same manner as any other
claim for compensation under this chapter.
(b) All issues and questions of law or fact pertaining to such claims
shall be resolved by the arbitrator appointed pursuant to this
paragraph. Arbitrators shall be appointed by the chair to adjudicate
claims under this paragraph. Such arbitrators shall have the same
powers and duties as those accorded referees under this chapter,
including powers delegated by the chair. The provisions of this chapter
shall be applicable to claims under this paragraph insofar as they are
not inconsistent herewith.
(c) An award or decision by an arbitrator pursuant to this paragraph
is deemed to be a final decision of the board except if review of such
decision is sought as provided in paragraph (d) of this subdivision. No
modification, rescission or review of such award or decision may be
entertained by the board, notwithstanding any provision of this chapter
to the contrary.
(d) Within thirty days after notice of the filing of an award or
decision by an arbitrator, any party in interest may request review of
the arbitrator's decision by a panel of three arbitrators in the same
manner and to the same extent as the decision by a referee may be
reviewed by the board pursuant to section twenty-three of this article.
The arbitration panel shall consist of one arbitrator nominated by the
chair, one arbitrator nominated by a recognized alternative dispute
resolution organization and one arbitrator nominated by an employee
organization certified pursuant to article fourteen of the civil service
law to represent the collective bargaining unit of the injured employee
or, if the injured employee is not represented by a collective
bargaining unit, by the recognized alternative dispute resolution
organization. A party in interest may seek review of such award or
decision of an arbitration panel only by taking appeal therefrom to the
appellate division of the supreme court, third department and the court
of appeals as provided for decisions of the board pursuant to section
twenty-three of this chapter.
(e) The powers and jurisdiction of the arbitration panel established
pursuant to this subdivision shall be continuing in the same manner and
to the same extent as provided under this chapter to the board.
(f) All fees, costs and expenses of arbitration shall be borne by the
board and the state insurance fund as administration expenses pursuant
to sections eighty-eight and one hundred fifty-one of this chapter.
(g) Any claim for compensation by an officer or employee of the board
or state insurance fund not required to be determined by a neutral
outside arbitration process pursuant to paragraph (a) of this
subdivision shall be determined initially by a referee with review of
such determination available pursuant to section twenty-three of this
chapter.
(h) For any claim for compensation by an officer or employee of the
workers' compensation board or the state insurance fund whether or not
such claim is required to be determined by a neutral outside arbitration
process pursuant to paragraph (a) of this subdivision, the referee or
arbitrator making the initial finding of fact concerning any medical
issue present in the case shall develop the record with opinion evidence
from an impartial specialist who is an expert in the appropriate medical
specialty. Such impartial specialist shall be subject to
cross-examination at the request of any party in interest.
(i) The state insurance fund shall administer the claim of any
officer or employee of the state insurance fund at an office of the
state insurance fund other than the office which was, at the time of
injury, disablement or death of such officer or employee, his or her
principal workplace.
(j) The chair shall promulgate regulations necessary to implement
this subdivision. Such regulations shall include provisions in relation
to this subdivision for a single arbitrator to determine a claim in the
first instance and a panel of three arbitrators to review such decision
upon the application of any party in interest prior to judicial review.
Such regulations shall also include all special procedures relating to
the handling of claims of officers or employees of the workers'
compensation board and the state insurance fund pursuant to paragraph
(f) of this subdivision.
3. Notwithstanding any other provision of law to the contrary, a
member of the workers' compensation board, a referee or any arbitrator
in connection with the adjudication of any claim arising under this
chapter shall recuse himself or herself on any ground a judge may be
disqualified pursuant to section fourteen of the judiciary law.
Presumptions. In any proceeding for the enforcement of a claim
for compensation under this chapter, it shall be presumed in the absence
of substantial evidence to the contrary
1. That the claim comes within the provision of this chapter;
2. That sufficient notice thereof was given;
3. That the injury was not occasioned by the willful intention of the
injured employee to bring about the injury or death of himself or of
another;
4. That the injury did not result solely from the intoxication of the
injured employee while on duty.
5. That the contents of medical and surgical reports introduced in
evidence by claimants for compensation shall constitute prima facie
evidence of fact as to the matter contained therein.
Temporary payment of compensation. * 1. Notwithstanding any
other provision of this chapter to the contrary, in any instance in
which an employer is unsure of the extent of its liability for a claim
for compensation by an injured employee pursuant to this chapter, such
employer may initiate compensation payments and payments for prescribed
medicine and continue such payments for one year, without prejudice and
without admitting liability, in accordance with a notice of temporary
payment of compensation, on a form prescribed by the board.
* NB Effective until January 1, 2027
* 1. Notwithstanding any other provision of this chapter to the
contrary, in any instance in which an employer is unsure of the extent
of its liability for a claim for compensation by an injured employee
pursuant to this chapter, such employer may initiate compensation
payments and payments for medical treatment and care, including
prescribed medicine and continue such payments for one year, without
prejudice and without admitting liability, in accordance with a notice
of temporary payment of compensation, on a form prescribed by the board.
* NB Effective January 1, 2027
* 2. The notice of temporary payment of compensation authorized by
subdivision one of this section shall be delivered to the injured
employee and the board. Such notice shall notify the injured employee
that the temporary payment of compensation and prescribed medicine shall
not be deemed to be an admission of liability by the employer for the
injury or injuries to the employee. The board, upon receipt of a notice
of temporary payment of compensation, shall send a notice to the injured
employee stating that:
(a) the board has received a notice of temporary payment of
compensation relating to such injured employee;
(b) the payment of temporary compensation and prescribed medicine and
the injured employee's acceptance of such temporary compensation and
prescribed medicine shall not be an admission of liability by the
employer, nor prejudice the claim of the injured employee;
(c) the payment of temporary compensation and prescribed medicine
shall terminate on the elapse of: one year, or the employer's contesting
of the injured employee's claim for compensation and prescribed
medicine, or the board determination of the injured employee's claim,
whichever is first; and
(d) the injured employee may be required to enter into an agreement
with the employer to ensure the continuation of payments of temporary
compensation and prescribed medicine.
* NB Effective until January 1, 2027
* 2. The notice of temporary payment of compensation authorized by
subdivision one of this section shall be delivered to the injured
employee and the board. Such notice shall notify the injured employee
that the temporary payment of compensation and medical treatment and
care, including prescribed medicine shall not be deemed to be an
admission of liability by the employer for the injury or injuries to the
employee. The board, upon receipt of a notice of temporary payment of
compensation, shall send a notice to the injured employee stating that:
(a) the board has received a notice of temporary payment of
compensation relating to such injured employee;
(b) the payment of temporary compensation and medical treatment and
care, including prescribed medicine and the injured employee's
acceptance of such temporary compensation and medical treatment and
care, including prescribed medicine shall not be an admission of
liability by the employer, nor prejudice the claim of the injured
employee;
(c) the payment of temporary compensation and medical treatment and
care, including prescribed medicine shall terminate on the elapse of:
one year, or the employer's contesting of the injured employee's claim
for compensation and medical treatment and care, including prescribed
medicine, or the board determination of the injured employee's claim,
whichever is first; and
(d) the injured employee may be required to enter into an agreement
with the employer to ensure the continuation of payments of temporary
compensation and medical treatment and care, including prescribed
medicine.
* NB Effective January 1, 2027
* 3. An employer may cease making temporary payments of compensation
and prescribed medicine if such employer delivers within five days after
the last payment, to the injured employee and the board, a notice of
termination of temporary payments of compensation on a form prescribed
by the board. Such notice shall inform the injured employee that the
employer is ceasing temporary payment of compensation and prescribed
medicine. Upon the cessation of temporary payments of compensation and
prescribed medicine, all parties to any action pursuant to this chapter
shall retain all rights, defenses and obligations they would otherwise
have pursuant to this chapter without regard for the temporary payment
of compensation and prescribed medicine.
* NB Effective until January 1, 2027
* 3. An employer may cease making temporary payments of compensation
and medical treatment and care, including prescribed medicine if such
employer delivers within five days after the last payment, to the
injured employee and the board, a notice of termination of temporary
payments of compensation on a form prescribed by the board. Such notice
shall inform the injured employee that the employer is ceasing temporary
payment of compensation and medical treatment and care, including
prescribed medicine. Upon the cessation of temporary payments of
compensation and medical treatment and care, including prescribed
medicine, all parties to any action pursuant to this chapter shall
retain all rights, defenses and obligations they would otherwise have
pursuant to this chapter without regard for the temporary payment of
compensation and medical treatment and care, including prescribed
medicine.
* NB Effective January 1, 2027
4. The failure of an employer to provide the notice of termination,
pursuant to subdivision three of this section, within one year of the
commencement of temporary payment of compensation shall be deemed to be
an admission of liability by the employer and the notice of temporary
payment of compensation shall be converted to a notice of compensation
payable.
Modification of awards, decisions or orders. Upon its own motion
or upon the application of any party in interest, on the ground of a
change in conditions or proof of erroneous wage rate, the board may at
any time, subject to the limitations set forth in sections twenty-five-a
and one hundred and twenty-three of this chapter, review any award,
decision or order and, on such review, may make an award ending,
diminishing or increasing the compensation previously awarded, subject
to the maximum or minimum provided in this chapter, and shall
immediately send to the parties a copy of its decision, which shall
include a statement of the facts which formed the basis of its action.
No such review shall affect such award as regards any moneys already
paid, except that an award increasing the compensation rate may be made
effective from date of injury, and except that if any part of the
compensation due or to become due is unpaid, an award decreasing the
compensation rate may be made effective from the date of injury, and any
payments made prior thereto in excess of such decreased rate shall be
deducted from any unpaid compensation, in such manner and by such
methods as may be determined by the board.
Appeals. An award or decision of the board shall be final and
conclusive upon all questions within its jurisdiction, as against the
state fund or between the parties, unless reversed or modified on appeal
therefrom as hereinafter provided. Any party may within thirty days
after notice of the filing of an award or decision of a referee, file
with the board an application in writing for a modification or
rescission or review of such award or decision, as provided in this
chapter. The board shall render its decision upon such application in
writing and shall include in such decision a statement of the facts
which formed the basis of its action on the issues raised before it on
such application. Within thirty days after notice of the decision of the
board upon such application has been served upon the parties, or within
thirty days after notice of an administrative redetermination review
decision by the chair pursuant to subdivision five of section fifty-two,
section one hundred thirty-one or section one hundred forty-one-a of
this chapter has been served upon any party in interest, an appeal may
be taken therefrom to the appellate division of the supreme court, third
department, by any party in interest, including an employer insured in
the state fund; provided, however, that any party in interest may within
thirty days after notice of the filing of the board panel's decision
with the secretary of the board, make application in writing for review
thereof by the full board. If the decision or determination was that of
a panel of the board and there was a dissent from such decision or
determination other than a dissent the sole basis of which is to refer
the case to an impartial specialist, or if there was a decision or
determination by the panel which reduced the loss of wage earning
capacity finding made by a compensation claims referee pursuant to
subparagraph w of subdivision three of section fifteen of this article
from a percentage at or above the percentage set forth in subdivision
three of section thirty-five of this article whereby a claimant would be
eligible to apply for an extreme hardship redetermination to a
percentage below the threshold, the full board shall review and affirm,
modify or rescind such decision or determination in the same manner as
herein above provided for an award or decision of a referee. If the
decision or determination was that of a unanimous panel of the board, or
there was a dissent from such decision or determination the sole basis
of which is to refer the case to an impartial specialist, the board may
in its sole discretion review and affirm, modify or rescind such
decision or determination in the same manner as herein above provided
for an award or decision of a referee. Failure to apply for review by
the full board shall not bar any party in interest from taking an appeal
directly to the court as above provided. The board may also, in its
discretion certify to such appellate division of the supreme court,
questions of law involved in its decision. Such appeals and the question
so certified shall be heard in a summary manner and shall have
precedence over all other civil cases in such court. The board shall be
deemed a party to every such appeal from its decision upon such
application, and the chair shall be deemed a party to every such appeal
from an administrative redetermination review decision pursuant to
subdivision five of section fifty-two of this chapter. The attorney
general shall represent the board and the chair thereon. An appeal may
also be taken to the court of appeals in the same manner and subject to
the same limitations not inconsistent herewith as is now provided in the
civil practice law and rules. It shall not be necessary to file
exceptions to the rulings of the board. An appeal to the appellate
division of the supreme court, third department, or to the court of
appeals, shall not operate as a stay of the payment of compensation
required by the terms of the award or of the payment of the cost of such
medical, dental, surgical, optometric or other attendance, treatment,
devices, apparatus or other necessary items the employer is required to
provide pursuant to section thirteen of this article which are found to
be fair and reasonable. Where such award is modified or rescinded upon
appeal, the appellant shall be entitled to reimbursement in a sum equal
to the compensation in dispute paid to the respondent in addition to a
sum equal to the cost of such medical, dental, surgical, optometric or
other attendance, treatment, devices, apparatus or other necessary items
the employer is required to provide pursuant to section thirteen of this
article paid by the appellant pending adjudication of the appeal. Such
reimbursement shall be paid from administration expenses as provided in
section one hundred fifty-one of this chapter upon audit and warrant of
the comptroller upon vouchers approved by the chair. Where such award is
subject to the provisions of section twenty-seven of this article, the
appellant shall pay directly to the claimant all compensation as it
becomes due during the pendency of the appeal, and upon affirmance shall
be entitled to credit for such payments. Neither the chair, the board,
the commissioners of the state insurance fund nor the claimant shall be
required to file a bond upon an appeal to the court of appeals. Upon
final determination of such an appeal, the board or chair, as the case
may be, shall enter an order in accordance therewith. Whenever a notice
of appeal is served or an application made to the board by the employer
or insurance carrier for a modification or rescission or review of an
award or decision, and the board shall find that such notice of appeal
was served or such application was made for the purpose of delay or upon
frivolous grounds, the board shall impose a penalty in the amount of
five hundred dollars upon the employer or insurance carrier, which
penalty shall be added to the compensation and paid to the claimant. The
penalties provided herein shall be collected in like manner as
compensation. A party against whom an award of compensation shall be
made may appeal from a part of such award. In such a case the payment of
such part of the award as is not appealed from shall not prejudice any
rights of such party on appeal, nor be taken as an admission against
such party. Any appeal by an employer from an administrative
redetermination review decision pursuant to subdivision five of section
fifty-two of this chapter shall in no way serve to relieve the employer
from the obligation to timely pay compensation and benefits otherwise
payable in accordance with the provisions of this chapter.
Nothing contained in this section shall be construed to inhibit the
continuing jurisdiction of the board as provided in section one hundred
twenty-three of this chapter.
Mistakes, defects and irregularities. 1. Notwithstanding
anything contained in 12 NYCRR 300.13 (b) as or further defined in
Subject Number 046-878 and Subject Number 046-940 issued by the board, a
mistake, omission, defect and/or other irregularity in a cover sheet
(currently known as form RB-89) accompanying an application for
administrative review or a cover sheet (currently known as RB-89.2)
accompanying an application for full board review shall not be grounds
for denial of said application for administrative review or full board
review.
2. Notwithstanding anything contained in 12 NYCRR 300.13 (b) or (c) as
or further defined in Subject Number 046-878 and Subject Number 046-940
issued by the board, a mistake, omission, defect and/or other
irregularity in a cover sheet (currently known as form RB-89.1)
accompanying a rebuttal to an application for administrative review or a
cover sheet (currently known as RB-89.3) accompanying a rebuttal to an
application for full board review shall not be grounds for denial of
said rebuttal to an application for administrative review or an
application for full board review.
3. The board shall permit any such mistake, omission, defect and/or
other irregularity to be corrected within twenty days of written notice
by the board of such mistake, omission, defect and/or other irregularity
or if a substantial right of either the party filing the application or
the party filing the rebuttal is not prejudiced, such mistake, omission,
defect and/or other irregularity shall be disregarded.
4. This section shall apply to any and all forms prescribed by the
board with respect to said applications for board review or full board
review or rebuttals to said applications subsequent to the effective
date of this section.
Costs and fees. 1. If the court before which any proceedings for
compensation or concerning an award of compensation have been brought,
under this chapter, determine that such proceedings have not been so
brought upon reasonable ground, it shall assess the cost of the
proceedings upon the party who has so brought them.
2. Claims of attorneys and counselors-at-law for legal services in
connection with any claim arising under this chapter, and claims for
services or treatment rendered or supplies furnished pursuant to
subdivision (b) of section thirteen of this article, shall not be
enforceable unless approved by the board. A written fee application on a
form prescribed by the board shall be filed for all legal fees in excess
of one thousand dollars ($1,000.00.) In the fee application the attorney
shall set forth the calculation used to determine the fee and certify
that the amount is in accordance with the following provisions. The form
prescribed by the board shall not require a description of the services
rendered or time records in conjunction with such written application.
The attorney shall set forth on the record the same calculation and
certification in all oral fee applications of one thousand dollars
($1,000.00) or less. The board shall approve such written and submitted
fee application in an amount commensurate with the services rendered and
the amount of compensation awarded, having due regard for the financial
state of the claimant in accordance with each applicable provision of
the following schedule:
(a) When an award is made directing the continuation of weekly
compensation benefits for temporary total or partial disability, the
attorney's fee shall be one-third of one week's compensation.
(b) When an award is made that increases the amount of compensation
awarded or paid for a previous period or periods of temporary total or
temporary partial disability, the attorney's fee shall be fifteen
percent of the increased compensation.
(c) When an award is made for schedule loss of use or permanent facial
disfigurement pursuant to paragraphs a through t of subdivision three of
section fifteen of this article, the attorney's fee shall be fifteen
percent of the compensation due in excess of the employer or carrier's
previous payments.
(d) When an award is made for permanent total disability pursuant to
subdivision one of section fifteen of this article or permanent partial
disability pursuant to paragraph w of subdivision three of section
fifteen of this article, the attorney's fee shall be equivalent to
fifteen percent of the compensation due in excess of the employer or
carrier's previous payments, plus a sum equivalent to fifteen weeks of
compensation at the rate fixed by the board.
(e) When an award is made for death benefits pursuant to section
sixteen of this article, the attorney's fee shall be equivalent to
fifteen percent of the compensation due in excess of the employer or
carrier's previous payments, plus a sum equivalent to fifteen weeks of
compensation at the rate fixed by the board.
(f) When an award is made pursuant to section thirty-two of this
article, the attorney's fee shall be fifteen percent of benefits to be
paid by the employer or carrier under the approved agreement, except
that benefits allocated for future medical expenses shall not be
included in the calculation of the fee. However, if the attorney has
previously been awarded a fee pursuant to this subdivision, any
un-accrued balance of any attorney fees under the foregoing paragraphs
shall be waived.
3. If a prior attorney has been substituted in a manner prescribed by
the board, and has submitted a fee request, the board shall determine
the amount of fees allocated to any prior attorney out of the total fees
awarded.
4. When so approved, such claim or claims shall become a lien upon the
compensation awarded, and upon any moneys ordered paid under an award by
the board into the special funds provided for in subdivision nine of
section fifteen and section twenty-five-a of this article, and any other
section of this chapter, but shall be paid therefrom only in the manner
fixed by the board. Any other person, firm or corporation who shall
exact or receive fee or gratuity for any services rendered on behalf of
a claimant except in an amount determined by the board, shall be guilty
of a misdemeanor. Any person, firm or corporation who shall solicit the
business of appearing before the board on behalf of a claimant, or who
shall make it a business to solicit employment for a lawyer in
connection with any claim for compensation under this chapter shall be
guilty of a misdemeanor. In case an award is affirmed upon an appeal to
the appellate division, the same shall be payable with interest thereon
from the date when said award was made by the board except as provided
in section twenty-seven of this article.
Representation before the workers' compensation board. 1. No
person, firm or corporation, other than an attorney and
counsellor-at-law, shall appear on behalf of any claimant or person
entitled to the benefits of this chapter, before the board or any
officer, agent or employee of the board assigned to conduct any hearing,
investigation or inquiry relative to a claim for compensation or
benefits under this chapter, unless he or she shall be a citizen of the
United States or a noncitizen lawfully admitted for permanent residence
in the United States, and shall have obtained from the board a license
authorizing him or her to appear in matters or proceedings before the
board. Such license shall be issued by the board in accordance with the
rules established by it. Any person, firm or corporation violating the
aforesaid provisions shall be guilty of a misdemeanor. The board, in its
rules, shall provide for the issuance of licenses to representatives of
charitable and welfare organizations, and to associations who employ a
representative to appear for members of such association, upon
certification of the proper officer of such association or organization,
which licenses shall issue without charge; and may provide for a license
without fee in the case of all other persons, firms or corporations in
an amount to be fixed by said rules. The board shall have such tests of
character and fitness with respect to applicants for licenses, and such
rules governing the conduct of those licensed, as aforesaid, as it may
deem necessary.
2. There shall be maintained in each office of the board a registry or
list of persons to whom licenses have been issued as provided herein,
which list shall be corrected as often as licenses are issued or
revoked. Absence of a record of a license issued as herein provided
shall be prima facie evidence that a person, firm or corporation is not
licensed to represent claimants. Any such license may be revoked by the
board, for cause, after a hearing before the board. No license hereunder
shall be issued for a period longer than three years from the date of
its issuance.
3. Refusal by any person to whom a license has been issued authorizing
him to appear on behalf of any claimant to answer, upon request of the
board, or other duly authorized officer, board or committee of the
state, any legal question or to produce any relevant book or paper
concerning his conduct under such license, shall constitute adequate
cause for revocation thereof.
4. Only an attorney, or a representative licensed in accordance with
rules established by the board pursuant to subdivisions three-b and
three-d of section fifty of this chapter, shall appear on behalf of an
employer or an insurance carrier regarding a claim for compensation or
any benefits under this chapter before the board or any officer, agent
or employee of the board assigned to conduct any hearing relative to a
claim for compensation or benefits under this chapter. The provisions of
this subdivision shall not apply to a designated regular employee of a
self-insured employer, or of an insurance carrier appearing on behalf of
his or her employer, but the board may prohibit the appearance of any
such employee for cause.
Compensation, how payable. 1. When no controversy; penalties:
failure to notify of cessation of payment; late payment of installment.
(a) The compensation herein provided for shall be paid periodically and
promptly in like manner as wages, and as it accrues, and directly to the
person entitled thereto without waiting for an award by the board,
including those cases previously established and closed by the board
upon receipt of an application to reopen such case, except in those
cases in which the right to compensation is controverted by the
employer.
(b) The first payment of compensation shall become due on the
fourteenth day of disability on which date or within four days
thereafter all compensation then due shall be paid, and the compensation
payable bi-weekly thereafter; but the board may determine that any
payments may be made monthly or at any other period, as it may deem
advisable. An award of compensation payable for permanent partial
disability under paragraphs a through t, inclusive, of subdivision three
of section fifteen of this article, shall be payable in one lump sum,
without commutation to present value upon the request of the injured
employee.
(c) If the employer or insurance carrier does not controvert the
injured worker's right to compensation such employer or insurance
carrier shall, either on or before the eighteenth day after disability,
or within ten days after the employer first has knowledge of the alleged
accident, whichever period is the greater, begin paying compensation and
shall immediately notify the chair in accordance with a form to be
prescribed by him, that the payment of compensation has begun,
accompanied by the further statement that the employer or insurance
carrier, as the case may be, will notify the chair when the payment of
compensation has been stopped.
(d) Whenever for any reason compensation payments cease, the employer
or its insurance carrier shall within sixteen days thereafter, send to
the chair a notice on a form prescribed by the chair that such payment
has been stopped, which notice shall contain the name of the injured
employee or his or her principle dependent, the date of accident, the
date to which compensation has been paid and the whole amount of
compensation paid. In case the employer or its insurance carrier fails
so to notify the chair of the cessation of payments within sixteen days
after the date on which compensation has been paid, the board may impose
a penalty upon such employer or its insurance carrier in the amount of
three hundred dollars, which shall be paid to the claimant. Such penalty
shall be collected in like manner as an award of compensation.
(e) If the employer or insurance carrier shall fail to pay any
installments of compensation within twenty-five days after the same
become due, there shall be paid by the employer or, if insured, its
insurance carrier, an additional amount of twenty percent of the
compensation then due which shall accrue for the benefit of the injured
worker or his or her dependents and shall be paid to him or her or them
with the compensation, unless such delay or default is excused by the
board upon the application of the employer or insurance carrier upon the
ground that owing to conditions over which the employer or insurance
carrier had no control, such payment could not be made. The employer in
each such instance shall also be assessed the sum of three hundred
dollars, which shall be paid to the claimant.
(f) Whenever compensation is withheld solely because a controversy
exists on the question of liability as between insurance carriers,
surety companies, the special disability fund, the special fund for
reopened cases, or an employer, the board may direct that any carrier,
surety company, the special disability fund, the special fund for
reopened cases shall immediately pay compensation and bills for medical
care to the extent payable in accordance with sections thirteen-g,
thirteen-k, thirteen-l and thirteen-m of this chapter, pending
determination of such issue. Any such payment or payments shall not be
deemed an admission against interest by the carrier, surety company,
special disability fund or the special fund for reopened cases. After
final determination, the parties shall make the necessary and proper
reimbursement including the payment of simple interest at the rate
established by section five thousand four of the civil practice law and
rules in conformity with such determination.
2. Procedure when compensation controverted; penalties: late filing;
controversy without just cause. (a) In case the employer decides to
controvert the right to compensation, it shall, either on or before the
eighteenth day after disability or within ten days after it has
knowledge of the alleged accident, whichever period is the greater, file
a notice with the chair, on a form prescribed by the chair, that
compensation is not being paid, giving the name of the claimant, name of
the employer, date of the alleged accident and the reason why
compensation is not being paid. When a claim for compensation is filed
with medical evidence of work related injury or illness, and the
claimant is disabled and not working, and the claimant is otherwise
entitled to compensation, and the employer is not making payment to the
claimant as required herein, and the employer has not controverted the
claim, and the efforts to resolve the issue with the carrier have not
been successful, the claimant may request, in the format prescribed by
the chair, a hearing to be held within forty-five days of the board's
receipt of such request.
If the insurance carrier shall fail either to file notice of
controversy or begin payment of compensation within the prescribed
period or within ten days after receipt of a copy of the notice required
in section one hundred ten of this chapter, whichever period is the
greater, the board may impose a penalty in the amount of three hundred
dollars, which shall be in addition to all other penalties provided for
in this chapter and shall be paid to the claimant. Such penalty shall be
collected in like manner as an award of compensation.
(b) In the event the board shall notify an employer or his insurance
carrier that a workers' compensation case has been indexed against such
employer, and the employer or insurance carrier decides to controvert
the right to compensation, a notice of controversy shall be filed with
the chair within twenty-five days from the date of mailing of a notice
that the case has been indexed. Failure to file the notice of
controversy within the prescribed twenty-five day time limit shall bar
the employer and its insurance carrier from pleading that the injured
person was not at the time of the accident an employee of the employer,
or that the employee did not sustain an accidental injury, or that the
injury did not arise out of and in the course of the employment.
However, the board, in the interest of justice, shall, upon the showing
of good cause therefor, permit the filing or the amendment of a notice
of controversy to raise an issue not theretofore raised because of
mistake, inadvertence, omission, irregularity, defect or surprise, or
based upon newly discovered evidence.
(c) If the board shall upon a hearing determine that objections to an
award of compensation by the employer or insurance carrier were
interposed without just cause, it shall state the grounds for such
determination and shall require the employer or the insurance carrier to
pay to the claimant, in addition to the amount presently due under the
award, the sum of three hundred dollars.
2-a. Pre-hearing conference. (a) In any controverted case, upon
receipt of the notice of controversy, the board shall schedule a
pre-hearing conference before a referee or conciliator as soon as
practicable but not to exceed forty-five days after receipt of notice of
controversy and a medical report referencing an injury. The board shall
give notice of the pre-hearing conference to all parties. A party may
appear at such conference pro se, or by an attorney or licensed
representative or other representative authorized by the board to appear
on behalf of such party.
(b) The purpose of the conference shall be to consider the following:
(i) confirmation that all appropriate forms, including medical
reports, have been submitted and a verification that all information on
the forms is accurate;
(ii) addition of any other necessary parties, where appropriate;
(iii) simplification and limitation of factual and legal issues, where
appropriate;
(iv) presentation of a list of proposed witnesses, where appropriate;
(v) scheduling the case for a hearing; and
(vi) entering into a stipulation.
(c) The referee or conciliator may continue the conference and order
the production of any necessary reports, including, where appropriate,
an examination by a carrier's consultant. At the conclusion of the
conference, the referee or conciliator may issue a written order. The
referee or conciliator may, upon agreement of all parties, issue a
decision which shall constitute a decision of the board for all
purposes. If a claimant shall be unrepresented, a decision issued by a
referee upon agreement of all parties at a pre-hearing conference shall
not become final until it shall have reviewed and approved by the chair
or a referee of the board designated by the chair. Such review by the
chair or an employee of the board so designated shall occur no later
than fourteen days from the date the proposed decision is submitted for
review and approval. The unrepresented claimant shall have ten days from
receipt of notice of such approval to withdraw from the agreement. If
not withdrawn, such agreement shall constitute an award of the board for
all purposes. Upon receipt of written notification of such withdrawal by
the unrepresented claimant, the board shall rescind the decision made by
the referee and restore the case to the regular hearing calendar
process. Such decision shall constitute a decision of the board for the
purposes of section twenty-three of this article.
(d) In cases where the claimant is represented by an attorney or a
licensed representative, ten days before the conference, each party
shall file a conference statement noting the specific issues in dispute,
including the information required in paragraph (b) of this subdivision.
Discovery shall close at the end of the pre-hearing conference. Evidence
not disclosed or obtained thereafter shall not be admissible unless the
proponent of the evidence can demonstrate that it was not available or
could not have been discovered by the exercise of due diligence prior to
the conference. If a claimant is unrepresented, the carrier shall file
such a statement.
(e) Proceedings in the pre-hearing part shall be conducted in
accordance with the rules promulgated by the chair or the board.
2-b. Conciliation. (a) 1. There is hereby created within the board a
conciliation process. The conciliation process will permit claims to be
handled on a more expeditious and informal basis and provide a mechanism
for claims to be addressed without undue controversy.
2. Conciliation may also address requests by hospitals, physicians or
other health care providers for payment of bills rendered by them in any
case, regardless of the expected duration of benefits, pursuant to
sections thirteen-g, thirteen-k, thirteen-l and thirteen-m of this
article, and regardless of the dollar amount of the bill.
(b) Each claim that is filed shall be reviewed for possible transfer
for conciliation. Claims where the expected duration of benefits is
fifty-two weeks or less shall be transferred for conciliation within
thirty days of receipt of a carrier's response to notice of index
required under this section, except uncontested claims where there have
been only temporary or minor injuries and where board appearance by the
claimant is unnecessary. Such minor and uncontested claims shall be
handled through a motion calendar as prescribed by the rules and
regulations promulgated pursuant to this section.
(c) Upon receipt of a claim for conciliation, a meeting shall be
scheduled, if necessary, within thirty days with all concerned parties
before a conciliation counsel.
(d) All information relative to the claim shall be made available to
all parties no later than five days before the meeting. This information
shall include, but not be limited to medical records, wage information,
date of accident or injury and the amount of time lost from work as a
result of such accident or injury.
(e) At such meeting the conciliation counsel shall promptly and prior
to any other proceeding authorized under this section inform any
claimant participating in the meeting without benefit of a counsel or
licensed representative of their right to have representation present,
their right to a reasonable adjournment to procure representation, of
their right to withdraw from any agreement at such meeting in accordance
with subdivision (g) of this section and such other and further
information as the chair may require to insure that an uncounselled
claimant fully understands the conciliation process. After informing
claimant in accordance with this subdivision, conciliation counsel shall
request a written consent to participate in the conciliation process
from claimant, and if such claimant declines to continue, shall
immediately cease the conciliation process and cause the claim to be
restored to the regular hearing calendar process.
(f) After reviewing all relevant information, conciliation counsel
shall prepare a proposed decision which shall be sent to all parties.
Any party may object to the proposed decision and request a hearing
within thirty days of the receipt of the proposed decision. If no
objection is made during such thirty day period the proposed decision
shall constitute a final award of the board for all purposes except that
it shall not be reviewable under sections twenty-two and twenty-three of
this article. If any party objects to the proposed decision, the case
shall be transferred to the regular hearing calendar process.
(g) If a claimant shall be unrepresented, the case shall not be agreed
to until it shall have been reviewed and approved by the chair or a
referee of the board designated by the chair. Such decision shall be
rendered within fifteen days of receipt of the agreement from the
conciliation bureau; provided, however, that a claimant shall have ten
days from receipt of notice of such approval to withdraw from the
agreement. If approved, such agreement shall constitute an award of the
board for all purposes except that it shall not be reviewable under
sections twenty-two and twenty-three of this article. Should the
agreement be disapproved or should the claimant withdraw from the
agreement as provided herein, the case shall be transferred to the
regular hearing calendar process.
(h) After the proposed decision has become final, the carrier shall
make payments of any award as required in the decision within ten days.
If, however, the carrier does not make the payments as required in the
decision within ten days of the date in which the proposed decision
becomes final, the chair shall impose of a fine of five hundred dollars
for failure to live up to the terms of the decision upon verification
that payment has not been timely made. Of that amount, three hundred
dollars shall be made payable to the claimant and two hundred dollars
shall be payable to the board for the operation and administration of
this chapter.
(i) If, in any case which has been addressed by conciliation, the
claimant requires additional medical care beyond that agreed to or
requires benefit payments beyond that agreed to, the meeting, if
necessary, shall be reconvened within thirty days from the receipt of
information demonstrating the need for additional medical care or
benefit payments. If it is determined that the claimant's condition may
continue for a period of time which is more than six months, such case
shall be reopened and transferred to the regular hearing calendar. If,
however, it is determined, based on medical evidence, that the
claimant's condition will improve in less than six months, the case
shall remain in conciliation.
2-c. Collective bargaining; alternative dispute resolution. (a) For
the purposes of employments classified under sections two hundred
twenty, two hundred forty and two hundred forty-one of the labor law, an
employer and a recognized or certified exclusive bargaining
representative of its employees may include within their collective
bargaining agreement provisions to establish an alternative dispute
resolution system to resolve claims arising under this chapter.
Any collective bargaining agreement or agreement entered into by the
employee and an employer which purports to preempt any provision of this
chapter or in any way diminishes or changes rights and benefits provided
under this chapter, except as expressly provided herein, shall be null,
void and unenforceable.
(b) Except as specifically provided in this subdivision, nothing in
this section or any collective bargaining agreement providing for an
alternative dispute resolution system for the resolution of claims
arising under this chapter shall preempt any provision of this chapter
or in any way diminish or change any benefits to which an employee, or
his or her dependents, or survivors may be entitled pursuant to the
provisions of this chapter.
(c) The collective bargaining agreement may establish the following
obligations and procedures:
(i) an alternative dispute resolution process to resolve claims
arising under this chapter, which may include but is not limited to
mediation or arbitration;
(ii) the use of an agreed managed care organization as defined in
section one hundred twenty-six of this chapter or a list of authorized
providers for medical treatment, which may be the exclusive source of
all medical and related treatment provided under this chapter;
(iii) the use of an agreed list of authorized providers for the
purpose of providing medical opinions and testimony, which may be the
exclusive source of all such medical opinions and testimony under this
chapter;
(iv) benefits for injured workers, their dependents or their survivors
supplemental to those provided under this chapter;
(v) a light duty, modified job, or return to work program;
(vi) a vocational rehabilitation or retraining program; and
(vii) worker injury and illness prevention programs and procedures.
(d) The determination of an arbitrator or mediator pursuant to an
alternative dispute resolution procedure pertaining to the resolution of
claims arising under this chapter shall not be reviewable by the
workers' compensation board, and the venue for any appeal shall be to a
court of competent jurisdiction in accordance with section twenty-three
of this chapter.
(e) (i) Determinations rendered as a result of an alternative dispute
resolution procedure shall remain in force during a period in which the
employer and a recognized or certified exclusive bargaining
representative are renegotiating a collective bargaining agreement.
(ii) Upon the expiration of a collective bargaining agreement which
contains a provision for an alternative dispute resolution procedure for
workers' compensation claims, the resolution of claims relating to
injuries sustained as a result of a work-related accident or
occupational disease may, if the collective bargaining agreement so
provides, be subject to the terms and conditions set forth in the
expired collective bargaining agreement until the employer and a
recognized or certified exclusive bargaining representative negotiate a
new collective bargaining agreement.
(iii) Upon the termination of a collective bargaining agreement which
is not subject to renegotiation, the employer and its employees shall
become fully subject to the provisions of this chapter to the same
extent as they were prior to the implementation of the collective
bargaining agreement provided, however, that when a claim has been
adjudicated under the alternative dispute resolution procedure, the
claimant or employer to such claim or matter shall be estopped from
raising identical issues before the board.
(f) Commencing January first, nineteen hundred ninety-six, and
annually thereafter, a copy of the collective bargaining agreement shall
be filed with the chair. The employer shall report the number of
employees subject to the collective bargaining agreement. The chair or
the chair's designee shall review the collective bargaining agreements
for compliance with the provisions of this section, shall notify the
parties to the agreement if the agreement is not in compliance, and
shall recommend appropriate action to bring the agreement into
compliance.
3. Hearings; procedure; penalty for late payment of award and for
dilatory tactics or unjustified lack of preparedness of a carrier or
employer. (a) The chairman may in the interest of justice at any time
refer a case in which payments are being made as above to the board for
a hearing, and shall immediately upon receipt of notice from the injured
worker, from the employer, or from the insurance carrier that the
employee's right to compensation is controverted, or that payments of
compensation have stopped or been suspended, make such investigations,
or cause such medical examinations to be made, or refer the case for
such hearings, as will properly protect the rights of both parties,
either as to any compensation then due or as to any compensation that
may become due in the future for temporary or permanent disability, and
shall promptly cause the resumption of payments in case the injured
person is entitled thereto.
(b) Nothing herein shall limit the right of the board in a particular
case to hold a hearing and make an award in accordance with other
provisions of this chapter. No case shall be closed without notice to
all parties interested and without giving to all such parties an
opportunity to be heard.
(c) The board shall keep an accurate record of all hearings held.
Whenever a hearing must be continued or adjourned because the carrier or
employer has engaged in dilatory tactics or exhibited unjustified lack
of preparedness, the board shall impose a penalty of twenty-five dollars
to be paid to the fund created by subdivision two of section one hundred
fifty-one of this chapter and shall in addition make an award of
seventy-five dollars payable to the injured worker or his or her
dependants. Dilatory tactics may include but shall not be limited to:
failing to subpoena medical witnesses or to secure an order to show
cause as directed by the referee, failing to bring proper files, failing
to appear, failing to produce witnesses or documents after they have
been requested by the referee or examiner or as directed by the hearing
notice, unnecessarily protracting the production of evidence, or
engaging in a pattern of delay which unduly delays resolution, except
that no penalty shall be imposed nor award made under this subdivision
if the carrier or employer produces evidence sufficient to excuse its
conduct to the satisfaction of the referee.
(d) If, in any case, the issues have not been resolved within one year
after such issues have been raised before the board, or if multiple
claims arise from the same accident or occurrence, or if all parties
agree to an expedited hearing, or if a notice of controversy is filed,
or if the chair otherwise deems it necessary, the chair may order that
the case be transferred to a special part for expedited hearings.
Proceedings in such part shall be conducted in an expedited manner.
Cases in such special part shall be scheduled in such a manner so
that, where appropriate, any and all outstanding issues may be addressed
at one hearing. An adjourned case shall be rescheduled as soon as
practicable, but no later than thirty days following such adjournment.
If a request for an adjournment is made by a carrier or employer which
is not an emergency and is deemed to be frivolous by the chair, a
penalty of one thousand dollars shall be imposed by the chair. If such
employer or carrier is represented by an attorney or licensed
representative who is not an employee of the carrier or employer, the
attorney or licensed representative shall be responsible for the payment
of such penalty. If a request for an adjournment is made by a claimant
who is represented by an attorney or a licensed representative which is
not an emergency and is deemed to be frivolous by the chair, a penalty
of five hundred dollars shall be imposed by the chair on the attorney or
licensed representative. Such penalty shall be paid by the attorney or
licensed representative and shall not come out of the claimant's award.
No penalty shall be imposed on an unrepresented claimant who requests an
adjournment.
(e) If the employer or its insurance carrier fails to file a notice or
report requested or required by the board or chair or otherwise required
within the specified time period or within ten days if no time period is
specified, the board may impose a penalty in the amount of fifty dollars
unless the employer or carrier produces evidence sufficient to excuse
its conduct to the satisfaction of the board. Such penalty shall be in
addition to all other penalties provided for in this chapter and shall
be paid into the state treasury.
(f) If the employer or its insurance carrier shall fail to make
payments of compensation according to the terms of the award within ten
days or the uninsured employers' fund shall fail to make payments of
compensation according to the terms of the award within thirty days
after such ten day period except in case of an application to the board
for a modification, rescission or review of such award, there shall be
imposed a penalty equal to twenty percent of the unpaid compensation
which shall be paid to the injured worker or his or her dependents, and
there shall also be imposed an assessment of fifty dollars, which shall
be paid into the state treasury.
(g) Notwithstanding any other provision in this chapter, the chair may
by regulation elect to establish a performance standard concerning the
subject of any penalty or assessment provision applicable to an
insurance carrier or self-insured employer, where such penalty or
assessment is remittable to the New York state treasury, or chair, but
not to claimants or any other payee or fund, and impose a single penalty
or assessment upon the failure to meet that promulgated standard, with
notice to the carrier or self-insured employer. The penalty or
assessment imposed in the aggregate shall be payable to the chair. Such
aggregate penalty or assessment shall be based upon the number of
violations as multiplied against the applicable penalty or assessment,
but may be negotiated by the chair's designee in full satisfaction of
the penalty or assessment. A final agreement between the chair's
designee and the carrier or self-insured employer may be submitted and
approved subject to section thirty-two of this article, without notice
to any claimant. Any aggregate penalty or assessment issued herein shall
be issued administratively, and the board, and the chair may, by
regulation, specify the method of review or redetermination, and the
presentment of evidence and objections shall occur solely upon the
documentation. The carrier or self-insured employer shall receive credit
for any instances in which the aggregate penalty or assessment is
inclusive of a penalty or assessment previously issued and paid in an
individual claim or proceeding. A final determination is subject to
review under section twenty-three of this article, except that no stay
in payment of the penalty or assessment shall apply pending the outcome
of the application for administrative review. Failure to pay the finally
determined penalty or assessment, or the penalty or assessment agreed
upon pursuant to section thirty-two of this article, within ten days of
filing, shall result in the imposition of a twenty-percent penalty,
payable to the chair. In the event of the carrier or self-insured
employer instituting or continuing an issue without reasonable grounds,
the provisions of subdivision three of section one hundred fourteen-a of
this chapter shall be applicable. Aggregate penalties shall be borne
exclusively by insurance carriers and licensed representatives pursuant
to subdivision three-b of section fifty of this article and the costs
shall not be passed to insured employers.
4. Advance payments of compensation; employer reimbursements; receipts
for payment. (a) If the employer has made advance payments of
compensation, or has made payments to an employee in like manner as
wages during any period of disability, he shall be entitled to be
reimbursed out of an unpaid instalment or instalments of compensation
due, provided his claim for reimbursement is filed before award of
compensation is made, or if insured, by the insurance carrier at the
direction of the board, unless he shall file a waiver of reimbursement
with the chairman, in which event compensation shall be paid to the
claimant notwithstanding the advanced payments.
(b) An injured employee, or in case of death his dependents or
personal representative, shall give receipts for payment of compensation
to the employer paying the same and such employer shall produce the same
for inspection by the chairman, whenever required.
(c) If the employer or comptroller of the state or city of New York or
trustees duly constituted under any welfare, pension or benefit plan,
agreement or trust to which the injured employee is a party or of which
he or she is a beneficiary, and which plan, agreement or trust shall
provide that the injured employee shall not be entitled to or shall be
limited in the amount of benefits or payments thereunder if he or she
shall be entitled to benefits under this chapter, shall have advanced or
paid benefits or payments thereunder to the injured employee during any
period in which his or her right to benefits under this chapter was not
determined, then and in such event such employer or comptroller of the
state or city of New York or trustees shall be entitled to be reimbursed
out of the unpaid instalment or instalments of compensation due,
provided claim therefor is filed together with proof of the terms of
said plan, agreement or trust and of the fact and amount of payment with
the board before award of compensation is made. The New York city
employees' retirement system shall provide to the board on a monthly
basis a listing in an electronic format including the names and social
security numbers of injured employees to whom benefit payments were paid
or advanced by such system and whose benefit payments are limited by
workers' compensation benefits awarded under this chapter. The board
shall verify which injured employees have been awarded workers'
compensation benefits and return the listing to the New York city
employees' retirement system including, but not limited to, the
following information relating to the award for each injured employee:
date of accident, board case number, carrier identification number,
carrier case number, beginning and ending dates of disability, payment
interval, and payment amount. The board shall return the listing to the
New York city employees' retirement system no later than fourteen days
after its receipt.
4-a. Public employee welfare fund; wage replacement payment; lien. a.
For the purposes of this subdivision, the following terms shall have the
following meanings:
(i) "Public employer" shall mean the state, a municipal corporation, a
local government agency or other political subdivision, a public
authority, a public benefit corporation, or any other political
subdivision of the state.
(ii) "Public employee" shall mean all employees of a public employer.
(iii) "Public employee welfare fund" shall mean any trust fund or
other fund established or maintained unilaterally or jointly by one or
more labor organizations which represent the relevant public employees
and/or one or more public employers whether directly or through
trustees, to provide employee welfare benefits for public employees or
their families or dependents, or for both, including, but not limited
to, medical, surgical or hospital care or benefits, and benefits in the
event of sickness, accident, disability, or death.
b. Where a public employee who is ineligible for benefits under
section two hundred three or two hundred seven of this chapter by reason
of his public employer's failure to voluntarily elect coverage under
section two hundred twelve of this chapter, is disabled and has claimed
or subsequently claims and is entitled to workers' compensation benefits
under this article, and that public employee is covered by a public
employee welfare fund which voluntarily provides a wage replacement
benefit in the event of disability, the following provision shall apply:
Where such an employee receives a wage replacement benefit from such a
public employee welfare fund in respect of the disability which forms
the basis of the workers' compensation claim, the public employee
welfare plan making such payment may, at any time before an award of
workers' compensation benefits is made, file with the board a claim for
reimbursement out of the proceeds of such award to the public employee
for the period for which the wage replacement benefit was paid to the
public employee under the rules of the public employee welfare fund, and
shall have a lien against the award for reimbursement, provided that the
insurance carrier or other entity liable for payment of the award
receives, before such award is made, a copy of the claim for
reimbursement from the public employee welfare fund which paid the wage
replacement benefit, or provided that the board's decision and award
directs such reimbursement.
5. Deposits for security; lump sum payments in certain cases. (a)
Whenever the chair may deem it advisable any employer or insurance
carrier may be required to make a deposit with the chair to secure the
prompt and convenient payment of such compensation, and the chair, shall
have power to make payments therefrom upon any awards. The interest on
all funds on deposit with the chair pursuant to this paragraph, may be
transferred to the uninsured employers' fund whenever the chair shall
determine that the net assets of the uninsured employers fund are less
than two million dollars or the amount expended by that fund in the
prior year whichever is greater.
(b) The board, whenever it shall so deem advisable, may commute such
periodical payments to one or more lump sum payments to the injured
employee, or, in case of death, his or her dependents, provided the same
shall be in the interests of justice. Such commutation shall be made
according to the method prescribed in section twenty-seven of this
article.
6. At the request of a person legally responsible for a minor
claimant, the board may, after a hearing, direct that payment be made to
the legally responsible person, to be used for the benefit of such
claimant. A person who is so designated shall report to the chairman
annually with respect to the use of such payments. The chairman may
require that a report be made more often than annually if there is
reason to believe that the person receiving such payments is using the
payments for purposes other than the benefit of the claimant. Should the
chairman or the board find that the payee is using the payment for
purposes other than the benefit of the claimant the board shall after a
hearing revoke the payee's designation and appoint a new payee. The
chairman shall take such action as is necessary to recover from the
payee any funds improperly used.
7. Payments and awards to minors. All awards of compensation required
to be made to minors under this chapter shall be paid to or for the
benefit of such minors. The board may in its discretion require the
appointment of a guardian, before making payments not otherwise directed
to be paid by action of such board, where such award exceeds two hundred
and fifty dollars. The board may, when such course seems advisable,
direct that funds, payable to or for the benefit of a minor, be paid for
vocational training or maintenance of such minor supplementing payments
made under subdivision nine of section fifteen of this chapter.
8. Rules. The board may adopt rules to carry out the provisions of
this section, including provision for reports to the chairman by a
guardian of the use of moneys paid to minors and reports to the chairman
by a designated payee of compensation to a minor, in accordance with
this section.
9. Direct deposit. (a) Compensation payments shall be required, upon
the written request from an injured worker or a person entitled to a
death benefit provided by this chapter, to be deposited directly in a
bank for any purpose to an account in the name of such injured worker or
person entitled to death benefits, and duly filed in accordance with
such regulations. Each person eligible to receive payment of
compensation or death benefits under this section shall be notified of
the option to receive such payment in the form of direct deposit from
the carrier or self-insured employer, such notice to be promulgated by
the board. Such eligible person shall also be provided the means
necessary to enroll in direct deposit pursuant to this paragraph in a
manner specified by regulations of the board at the same time as notice
is given pursuant to this paragraph.
(b) The board is hereby authorized to promulgate reasonable rules and
regulations, as may be necessary, to administer the direct deposit of
compensation payments. Such regulations shall permit the deposit of
compensation payments to be split between multiple accounts by either a
dollar amount or exact percentage, provided, however, such regulations
may establish a minimum dollar amount and may limit the maximum number
of partial deposits allowed.
(c) As used in this subdivision, the term "bank" includes any
financial institution which is a member of the New York automated
clearinghouse or any financial institution designated by the board.
(d) Notwithstanding any provision in this subdivision to the contrary,
direct deposit of any compensation payment may not be made if such
payment would be in violation of any federal or state law or regulation.
Procedure and payment of compensation in certain claims;
limitation of right to compensation. 1. Notwithstanding other
provisions of this chapter, when an application for compensation is made
by an employee or for death benefits in behalf of the dependents of a
deceased employee, and the employer has secured the payment of
compensation in accordance with section fifty of this chapter, (1) after
a lapse of seven years from the date of the injury or death and claim
for compensation previously has been disallowed or claim has been
otherwise disposed of without an award of compensation, or (2) after a
lapse of seven years from the date of the injury or death and also a
lapse of three years from the date of the last payment of compensation,
or (3) where death resulting from the injury shall occur after the time
limited by the foregoing provisions of (1) or (2) shall have elapsed,
subject to the provisions of section one hundred twenty-three of this
chapter, testimony may be taken, either directly or through a referee
and if an award is made it shall be against the special fund provided by
this section. Such an application for compensation or death benefits
must be made on a form prescribed by the chair for that purpose and
must, if a change in condition is claimed, be accompanied by a verified
medical or surgical report setting forth facts on which the board may
order a hearing.
1-a. Any award which shall be made against such special fund after the
effective date of this act upon such an application for compensation or
death benefits shall not be retroactive for a period of disability or
for death benefits longer than the two years immediately preceding the
date of filing of such application. No application by a self-insured
employer or an insurance carrier for transfer of liability of a claim to
the fund for reopened cases shall be accepted by the board on or after
the first day of January, two thousand fourteen except that the board
may make a finding after such date pursuant to section twenty-three of
this article upon a timely application for review.
2. Claims for further services or treatment rendered or supplies
furnished as required by section thirteen hereof shall be paid from such
fund when such service, treatment or supplies shall be authorized by the
chairman. In cases where a surgical operation has previously been
authorized by the board pursuant to the provisions of subdivision five
of section thirteen-a of this chapter, no further authorization therefor
by the chairman under this section shall be required. The provisions of
this chapter with respect to procedure and the right to appeal shall be
preserved to the claimant and to the employer originally liable for the
payment of compensation and to such fund through its representative as
hereinafter provided.
3. Any awards so made shall be payable out of the special fund
heretofore created for such purpose, which fund is hereby continued and
shall be known as the fund for reopened cases. The employer, or, if
insured, his insurance carrier shall pay into such fund, or, in the case
of awards made on or after July first, nineteen hundred sixty-nine,
either into such fund or the uninsured employers' fund under section
twenty-six-a of this article in accordance with the provisions thereof,
for every case of injury causing death for which there are no persons
entitled to compensation the sum of three hundred dollars where such
injury occurred prior to July first, nineteen hundred forty and the sum
of one thousand dollars where such injury shall occur on or after said
date and prior to April first, nineteen hundred forty-five, and the sum
of fifteen hundred dollars where such injury shall occur on or after
April first, nineteen hundred forty-five and prior to September first,
nineteen hundred seventy-eight and the sum of three thousand dollars
where such injury shall occur on or after September first, nineteen
hundred seventy-eight, and in each case of death resulting from injury
sustained on or after July first, nineteen hundred forty and prior to
September first, nineteen hundred seventy-eight, where there are persons
entitled to compensation but the total amount of such compensation is
less than two thousand dollars exclusive of funeral benefits, the
employer, or, if insured, his insurance carrier, shall pay into such
fund, or, in the case of awards made on or after July first, nineteen
hundred sixty-nine and prior to September first, nineteen hundred
seventy-eight, either into such fund or the uninsured employers' fund
under section twenty-six-a of this article in accordance with the
provisions thereof, the difference between the sum of two thousand
dollars and the compensation, exclusive of funeral benefits, and in each
case of death resulting from injury sustained on or after September
first, nineteen hundred seventy-eight, the employer, or if insured, his
insurance carrier shall pay into such fund or the uninsured employers'
fund under section twenty-six-a of this article in accordance with the
provisions thereof, the difference between the sum of five thousand
dollars and the compensation, exclusive of funeral benefits actually
paid to or for the dependents of the deceased employee together with any
expense charge required by section twenty-seven of this article;
provided, however, that where death shall occur subsequent to the
periods limited by subdivision one of this section no payment into such
special fund nor to the special fund provided by subdivision nine of
section fifteen nor to the uninsured employers' fund provided by section
twenty-six-a of this article shall be required. In addition to the
assessments made against all insurance carriers for the expenses of
administering this chapter provided for under the provisions of section
one hundred fifty-one of this chapter, and the payments above provided,
the employer, or, if insured, his insurance carrier, shall pay the sum
of five dollars into said fund for each case in which an award is made
pursuant to the provisions of paragraphs a to s inclusive of subdivision
three of section fifteen of this chapter, by reason of injury sustained
between July first, nineteen hundred forty and June thirtieth, nineteen
hundred forty-two, both dates inclusive, and the sum of ten dollars for
each such case by reason of injury sustained between July first,
nineteen hundred forty-two and June thirtieth, nineteen hundred fifty,
both dates inclusive, which payment shall be in addition to any payment
of compensation to the injured employee as provided in this chapter.
There shall be maintained in the special fund at all times assets at
least equal in value to the sum of (1) the value of awards charged
against such fund, (2) the value of all claims that have been reopened
by the board as a charge against such fund but as to which awards have
not yet been made, (3) effective January first, nineteen hundred
seventy-one, the value of total supplemental benefits to be paid from
such fund as reimbursement pursuant to subdivision nine of this section,
and (4) a reserve equal to ten per cent of the sum of items (1), (2) and
(3) of this paragraph. Annually, as soon as practicable after January
first in each year, the chair shall ascertain the condition of the fund
and whenever the assets shall fall below the prescribed minimum as
herein provided the chair shall collect an amount sufficient to restore
the fund to the prescribed minimum. Commencing on the first of January,
two thousand fourteen, the amount collected from all employers required
to obtain workers' compensation coverage to maintain the financial
integrity of the fund may be paid over a period of time at the
discretion of the chair based upon an analysis of the financial
condition of the fund. Such payment as determined by the chair shall be
included in the assessment rate established pursuant to subdivision two
of section one hundred fifty-one of this chapter. The chair shall
promulgate regulations to administer claims whose liability has been
transferred to the fund for reopened cases. Such regulations may include
exercise of the chair's authority to administer existing claims, to
procure management for those claims, or to sell such liability. The
chair may examine into the condition of the fund at any time on his or
her own initiative or on request of the attorney of the fund.
The provisions of this subdivision shall not apply with respect to
policies containing coverage pursuant to section thirty-four hundred
twenty of the insurance law relating to every policy providing
comprehensive personal liability insurance on a one, two, three or four
family owner-occupied dwelling.
4. The commissioner of taxation and finance shall be the custodian of
such special fund for reopened cases and shall invest any surplus monies
thereof in securities which constitute legal investments for savings
banks under the laws of this state and in interest bearing certificates
of deposit of a bank or trust company located and authorized to do
business in this state or of a national bank located in this state
secured by a pledge of direct obligations of the United States or of the
state of New York in an amount equal to the amount of such certificates
of deposit, and may sell any of the securities or certificates of
deposit in which such fund is invested, if necessary for the proper
administration or in the best interest of such fund. Disbursements from
such fund for compensation provided by this section shall be paid by the
commissioner of taxation and finance upon vouchers signed by the
chairman.
The commissioner of taxation and finance, as custodian of such fund,
annually as soon as practicable after January first, shall furnish to
the chairman a statement of the fund, setting forth the balance of
monies in the said fund as of the beginning of the year, the income of
the fund, a summary of payments out of the fund on account of
compensation ordered to be paid by the board, medical and other expense,
and all other charges against the fund, and setting forth the balance of
the fund remaining to its credit on December thirty-first. Such
statement shall be open to public inspection in the office of the
chairman, and a copy thereof shall be transmitted by the chairman to the
superintendent of financial services. The superintendent of financial
services may examine into the condition of such fund at any time on his
own initiative or on request of the chairman or representative of the
fund. He shall verify the receipts and disbursements of the fund, and
shall ascertain the liability of the fund upon all cases in which awards
of compensation have been made and charged against said fund and shall
render a report of such facts to the chairman. Such report shall also be
open to public inspection in the office of the chairman.
5. For applications by self-insured employers or insurance carriers
for transfer of liability for compensation to the fund for reopened
cases under this section, received by the board prior to the first day
of January, two thousand fourteen, the chair shall appoint an attorney
in such proceedings to represent such fund in proceedings brought to
enforce a claim against such fund. Such attorney may apply to the chair
for authority to hire such medical or other experts and to defray the
expense thereof and of such witnesses as are necessary to a proper
defense of the application within an amount in the discretion of the
chair and, if authorized, it shall be a charge against the special fund
provided herein.
6. Notwithstanding any other provision of this chapter, no award of
compensation or death benefits shall be made against said special fund
or against an employer or an insurance carrier where application
therefor is made after a lapse of eighteen years from the date of the
injury or death and also a lapse of eight years from the date of the
last payment of compensation.
7. For the purposes of this section the date of the last payment of
compensation shall be deemed to mean the date of actual payment of the
last installment of compensation previously awarded; provided, however,
that where the case is disposed of by the payment of a lump sum, the
date of last payment for the purpose of this section shall be considered
as the date to which the amount paid in the lump sum settlement would
extend if the award had been made on the date the lump sum payment was
approved at the maximum compensation rate which is warranted by the
employee's earning capacity as determined by the board under section
fifteen of this chapter.
8. The provisions of this section shall not apply to any open case
pending before the board on April twenty-fourth, nineteen hundred
thirty-three or to any closed case in which an application for reopening
was received prior to such date, or to awards for deficiency
compensation made pursuant to section twenty-nine of this chapter, nor
shall it apply during the pendency of an appeal provided for by section
twenty-three of this chapter; provided, however, that such provisions
shall be retroactive in effect except as to payments into the special
fund provided for an employer or his insurance carrier, and except as
otherwise herein provided.
9. (a) Notwithstanding any other provision of this chapter, every
employee who is receiving workers' compensation under this chapter for a
permanent and total disability resulting from an accidental injury or
occupational disablement which occurred prior to January first, nineteen
hundred seventy-nine and every widow or widower who is receiving death
benefits under this chapter on account of the death of his or her spouse
prior to January first, nineteen hundred seventy-nine shall receive
supplemental benefits upon application therefor to the board, which
shall be payable in the first instance by the employer or its insurance
carrier in accordance with the provisions of this subdivision. These
supplemental benefits shall commence on July first, nineteen hundred
ninety and shall continue during the period of such permanent total
disability or entitlement to death benefits.
(b) If such employee, widow or widower is receiving the statutory
maximum benefit in effect at the time of the accidental injury or death,
the supplemental benefit shall be an amount which, when added to the
regular benefit established for the case, shall equal the maximum weekly
benefit in effect for a permanently totally disabled employee, widow or
widower whose claim arose on January first, nineteen hundred
seventy-nine.
(c) If such employee, widow or widower is receiving a weekly benefit
which is less than the statutory maximum benefit which was in effect on
the date of the accidental injury or death, the supplemental benefit
shall be an amount equal to the difference between the regular benefit
being received and a percentage of the maximum benefit in effect on
January first, nineteen hundred seventy-nine, determined by multiplying
the latter benefit by a fraction, the numerator of which is the regular
benefit and the denominator of which is the statutory maximum benefit in
effect at the time of the accidental injury or death.
(d) In the event the supplemental benefit computed under this
subdivision amounts to less than five dollars, then the supplemental
benefit allowed shall be a minimum of five dollars, less the amount, if
any, by which the combination of such supplemental benefit and the
regular benefit exceeds the maximum weekly benefit in effect for a
permanently totally disabled employee, widow or widower whose claim
arose on January first, nineteen hundred seventy-nine.
(e) The employer or his insurance carrier paying the supplemental
benefits required under this subdivision shall claim reimbursement for
each such case from the reopened cases fund under this section,
commencing one year from the date of the first such payment and annually
thereafter while such supplemental payments continued, on a form
prescribed by the chairman.
(f) The special disability fund created under subdivision eight of
section fifteen and the reopened cases fund created under section
twenty-five-a and the aggregate trust fund created under section
twenty-seven of this chapter shall be deemed to be insurance carriers
for purposes of this subdivision, other than the payment of the
assessment under the provisions of subdivision three of this section.
(g) Whenever payment of the supplemental benefits prescribed hereunder
is not made by the insurance carrier by reason of the insolvency of such
insurance carrier, or in the case of a self-insurer, by reason of the
insolvency of such self-insurer or the discontinuance of its operations,
such payment shall be made directly out of the reopened cases fund under
this section by the commissioner of taxation and finance upon vouchers
approved by the chairman of the workmen's compensation board.
Awards to non-residents: Non-resident compensation fund. 1.
There is hereby created a fund to be known as the non-resident
compensation fund. Whenever an award is made to or on behalf of
noncitizen dependents, non-residents of the United States, Canada or
Newfoundland, or an award is made to a non-resident citizen of the
United States, which calls for the payment of compensation or death
benefits, or where there is outstanding an unpaid balance of
compensation or death benefits payable to such non-resident, and it
shall appear that the person or persons to whom the award has been made
or any balance of such award is payable, would not have the full benefit
or use or control of the money payable under such award, or where other
special circumstances made it desirable that present payment of the
award shall be withheld, the employer, or if insured, his insurance
carrier, or any special fund liable for such payment, may, by order of
the board, be required to pay to the comptroller of the state of New
York all amounts then due or thereafter to become due under the terms of
the award to such non-resident. The moneys so paid in shall be held by
the comptroller in the non-residents compensation fund.
2. All computations for the commutation of any such award for payment
into the said fund shall be made in accordance with the tables specified
in section twenty-seven of this chapter.
3. The payment of the amount of any such award into the non-resident
compensation fund shall constitute a complete discharge of the employer
or insurance carrier from all liability for such award.
4. If at any time there shall be created by any act of the congress of
the United States or by any lawful rule or regulation of the president
any agency or fund for the safekeeping or custody of moneys belonging to
or payable to any non-resident noncitizen, and if such act or rule shall
require the payment into such agency or fund of any moneys theretofore
paid into the fund for foreign dependents, the board may make its
findings and issue its order thereon directing the transfer of such
moneys by the comptroller to such other agency or fund.
5. Any moneys so paid into such fund shall be held by the comptroller
until the further order of the board. Whenever the board shall find that
the reasons and conditions which made it desirable that payment into the
fund be made have changed and that the cause for such withholding shall
no longer exist, the board may make findings and issue its order thereon
directing the payment without interest of the whole or any part thereof
then due by the comptroller to the person or persons for whose benefit
the award was made.
6. If the board, at any time, upon evidence presented to it, shall
find that all or any part of the funds so deposited in such fund are not
due and payable to the non-resident for whose benefit they were
deposited, it shall direct the repayment of such amount so deposited,
without interest, by the comptroller to the party required to make the
deposit as aforesaid.
7. If no evidence shall be presented to the board of the present
existence of any such non-resident within eight years from the date when
the board has found that the precedent conditions set forth in paragraph
one hereof have changed and that direct payments could be made to such
person or persons if such person or persons are alive, it shall be
presumed in the absence of substantial evidence to the contrary, that
such person or persons are non-existent and the board shall thereupon
order the payment without interest of the amount deposited for the
benefit of such person or persons to the party required to make such
deposit as aforesaid, provided however, that thereafter such employer,
carrier or fund receiving such repayment shall continue to be liable for
any compensation subsequently found by the board to be due,
notwithstanding any other provisions of this chapter.
Enforcement of payment in default. In case of default by the
employer in the payment of any compensation due under an award for the
period of thirty days after payment is due and payable, or in case of
failure or refusal by the employer to deposit with the chairman within
ten days after demand the commuted or estimated value of the
compensation payable under an award made in accordance with the
provisions of section fourteen-a of this chapter as security for prompt
and convenient payment of such compensation periodically as it accrues,
or where the employer has failed to secure the payment of compensation
to his employees as required by section fifty hereof and there is such
default in payment for a period of ten days after same is due or there
is default or refusal of such employer to deposit with the chairman
within ten days after demand the commuted or estimated value of
compensation not presently payable, as security for prompt and
convenient payment of such compensation periodically as it accrues in
accordance with the provisions of section twenty-five of this chapter,
or in case of failure by an employer, within twenty days after it is
due, to pay an assessment imposed by the chairman pursuant to
subdivision five of section fifty-two of this chapter, the chairman in
any such case or on the chairman's consent any party to an award may
file with the county clerk for the county in which the injury occurred
or the county in which the employer has his principal place of business,
(1) a certified copy of the decision of the workmen's compensation board
awarding compensation or ending, diminishing or increasing compensation
previously awarded, from which no appeal has been taken within the time
allowed therefor, or if an appeal has been taken by an employer who has
not complied with the provisions of section fifty hereof, where he fails
to deposit with the chairman the amount of the award as security for its
payment within ten days after the same is due and payable, or (2) a
certified copy of the demand for deposit of security, or (3) a certified
copy of the chairman's order imposing, and the demand for payment of,
such assessment, and thereupon judgment must be entered in the supreme
court by the clerk of such county in conformity therewith immediately
upon such filing. If the payment in default be an instalment, the board
may declare the entire award due and judgment may be entered in
accordance with the provisions of this section. Such judgment shall be
entered in the same manner, have the same effect and be subject to the
same proceedings as though rendered in a suit duly heard and determined
by the supreme court, except that no appeal may be taken therefrom. The
court shall vacate or modify such judgment to conform to any later award
or decision of the board upon presentation of a certified copy of such
award or decision. The award may be so compromised by the board as in
the discretion of the board may best serve the interest of the persons
entitled to receive the compensation or benefits. Where an award has
been made against the employer in accordance with the provisions of
section fifteen, subdivision nine, or of section twenty-five-a, or of
section twenty-six-a, such an award may be similarly compromised by the
board, upon notice to a representative of the fund to which the award is
payable, but if there be no representative of any such fund, notice
shall be given to such representative as may be designated by the
chairman of the board; and notwithstanding any other provision of law,
such compromise shall be effective without the necessity of any approval
by the state comptroller. Neither the chairman nor any party in interest
shall be required to pay any fee to any public officer for filing or
recording any paper or instrument or for issuing a transcript of any
judgment executed in pursuance of this section. Whenever the term
employer is used in this section it shall be deemed to include without
limitation a contractor liable for the payment of compensation pursuant
to section fifty-six of the workmen's compensation law.
Procedure and payment of compensation in claims against
uninsured defaulting employers. 1. (a) Notwithstanding any other
provision of this chapter, when a claim for compensation is filed by an
employee, or in case of death by the employee's dependents, and the
employer has failed to secure the payment of compensation in accordance
with section fifty of this chapter, to make deposit of security in
accordance with section twenty-six of this chapter and to make payment
of compensation into the fund created under this section according to
the terms of any award including, without limitation, awards made
pursuant to subdivision five of section thirteen-g, subdivision two of
section thirteen-f, subdivision five of section thirteen-k, subdivision
five of section thirteen-l and subdivision six of section thirteen-m of
this article, payment of the award shall be promptly made from the fund
created under this section in accordance with the terms thereof and the
provisions of subdivision three of this section. The employer shall be
liable with the fund for payment of the award. Where the employer is a
corporation the president, secretary and treasurer thereof shall also be
personally, jointly and severally liable with the corporation for
payment of the award. The employer shall pay the award into the fund, in
accordance with the time limitations contained in section twenty-five of
this article.
(b) No such award, however, for any service specified in subdivision
five of section thirteen-a of this article requiring advance
authorization of the employer in accordance with the provisions of such
subdivision, shall be payable from the fund unless advance authorization
therefor was secured from the representative of the fund or is
determined by the board to be necessary. Notwithstanding any other
provision under this section, awards made pursuant to section fourteen-a
of this article shall not be the liability of the fund and shall not be
payable therefrom nor shall payment of the present value of benefits be
required to be paid into the aggregate trust fund pursuant to section
twenty-seven of this article in any case in which the uninsured
employers' fund is liable.
2. Uninsured employers' fund. (a) There is hereby created a fund
which shall be known as the "uninsured employers' fund" to provide for
the payment of awards against uninsured employers in accordance with the
provisions of this section and shall be available only for the purposes
stated in this subdivision, and the assets thereof shall not at any time
be appropriated or directed to any other use or purpose, except as set
forth in section fifty-a of this chapter.
(b) For the purpose of establishing and maintaining this fund, the
board, upon rendering a decision with respect to any claim for
compensation under this chapter that the employer liable therefor has
failed to secure the payment of compensation with respect thereto in
accordance with section fifty of this chapter, shall impose an
assessment in the sum of one thousand dollars for each ten day period of
non-compliance or a sum not in excess of two times the amount of the
cost of compensation for its payroll for the period of such failure
against the employer and direct its payment into the fund in connection
with each such claim wherein injury shall have occurred on or after the
first of May, nineteen hundred fifty-nine, or in death cases where death
as the result of injury shall have occurred on or after said date.
(c) If the employer shall fail to pay these assessments into the fund
within ten days after date of mailing of notice thereof to him or her,
such default shall constitute a default in payment of compensation due
pursuant to the provisions of section twenty-six of this article and
judgment therefor shall be entered in accordance therewith, all other
provisions of said section to be deemed applicable with respect thereto,
except to the extent that said provisions may be clearly inconsistent
with the provisions of this section. All sums collected from an
uninsured employer with respect to any claim for compensation referred
to in this section but not payable from the fund, except fines collected
from such employer pursuant to section fifty-two of this chapter whether
such collection is made prior or subsequent to entry of judgment against
such employer, shall be deemed in payment of an applicable first in
satisfaction of any compensation and benefits due from such employer
with respect to such claim and security demand, if any, in connection
therewith and only when such obligations are satisfied in full shall the
balance of said sums collected, if any, be deemed payment in
satisfaction of and applicable to the assessments above prescribed in
this section.
(d) All sums recovered from uninsured employers on judgments entered
for failure to pay assessments as hereinbefore provided and for failure
to pay compensation and benefits which were paid from the fund herein
created, shall upon such recovery be paid into said fund.
(e) All awards made on or after July first, nineteen hundred
sixty-nine for every case of injury causing death for which there are no
persons entitled to compensation, and where there are persons entitled
to compensation but the total amount of such compensation is less than
two or five thousand dollars as the case may be exclusive of funeral
benefits, pursuant to the provisions of subdivision three of section
twenty-five-a of this article shall be paid into the uninsured
employers' fund.
(f) As promptly as practicable after July first, nineteen hundred
ninety-one and annually thereafter as soon as practicable after January
first in each succeeding year, the chair shall ascertain the condition
of the uninsured employers' fund. The chair shall transfer to the fund
out of the moneys collected pursuant to subdivision two of section one
hundred fifty-one of this chapter an amount which will raise the net
cash assets of the fund to the level of either the amount spent by the
fund in the prior year, or the amount estimated to be expended by the
fund in the succeeding year, whichever is greater, except that such
requirement shall not apply between August first, two thousand eight and
August first, two thousand fifteen to the extent that section fifty-a of
this chapter permits the fund to be at a different level.
3. The commissioner of taxation and finance shall be the custodian of
the uninsured employers' fund and shall invest any surplus moneys
thereof in securities which constitute legal investments for savings
banks under the laws of this state and in interest bearing certificates
of deposit of a bank or trust company located and authorized to do
business in this state or of a national bank located in this state
secured by a pledge of direct obligations of the United States or of the
state of New York, or in accordance with the provisions of section
ninety-eight-a of the state finance law, in an amount equal to the
amount of such certificates of deposit, and may sell any of the
securities or certificates of deposit in which such fund is invested, if
necessary for the proper administration or in the best interest of such
fund. Disbursements from such fund as provided by this section shall be
paid by the commissioner of taxation and finance upon vouchers signed by
the chairman.
The commissioner of taxation and finance, as custodian of such fund,
as soon as practicable after August first, nineteen hundred sixty-two
and annually thereafter, shall furnish to the chairman of the board a
statement of the fund, setting forth the balance of moneys in the said
fund as of the time of the preceding statement, the income of the fund,
a summary of payments out of the fund on account of compensation ordered
to be paid therefrom by the board, medical and other expenses, and all
other charges against the fund in the interim and setting forth the
balance of the fund remaining to its credit as of the end of the period
being reported. Such statement shall be open to public inspection in the
office of the chairman, and a copy thereof shall be transmitted by the
chairman to the superintendent of financial services. The superintendent
of financial services may examine into the condition of such fund at any
time on his own initiative or on request of the chairman. He shall
verify the receipts and disbursements of the fund, and shall ascertain
the liability of the fund upon all cases in which awards of compensation
have been made and charged against said fund and shall render a report
of such facts to the chairman. Such report shall also be open to public
inspection in the office of the chairman.
4. Upon notice to the representative of the fund, the board, if in its
discretion it deems the interests of the fund will be best served
thereby, may compromise the amount for which judgment has been entered
against an employer pursuant to this section and the judgment entered
may be modified accordingly. Such compromise shall be effective without
the necessity of obtaining the approval of any other state official
thereto, but shall not reduce the amount of benefits payable to or on
behalf of any claimant under this section.
5. The chairman of the workmen's compensation board shall appoint an
employee of the board who is an attorney at law duly admitted to
practice in the state of New York to serve as the representative of the
fund created under this section and shall assign to assist him in the
discharge of his duties as such representative under the provisions of
this section, such other employees of the board as the chairman deems
necessary for this purpose. Such representative may apply to the
chairman for authority to hire such medical and other experts and to
defray the expense thereof and of such witnesses as are necessary to a
proper defense of the claim within an amount in the discretion of the
chairman and, if authorized, such amount shall be a charge against said
fund. The representative of the fund may appear for and represent the
interest of the fund in any case in court involving the rights of the
fund against another not in the same employ as the employee who received
benefits under this chapter and whose injury or death was caused by the
negligence or wrong of such other.
6. Whenever it appears, in a claim for benefits under this chapter,
that the employer may have failed to secure the payment of compensation
in accordance with section fifty of this chapter, the fund shall be
given notice of all proceedings in the claim. In such event, the
provisions of this chapter with respect to procedure, the right to be
heard and the right to apply to the board for review of a referee's
decision and to appeal to the courts shall be reserved to the claimant,
to the uninsured employer, and to the fund. Upon the application of the
representative of the fund for a modification or rescission or review of
an award, the board may review any award, decision or order and, on such
review, may affirm, reverse, or modify any decision or award as the law
and the facts may require, or take such other action as may be in the
interest of justice. An appeal to the appellate division of the supreme
court, third department, or to the court of appeals shall not operate as
a stay of the payments by the uninsured employer or by the fund of the
compensation required by the terms of the award or of the payment of the
doctor's bills found to be fair and reasonable. Where such award is
reduced or rescinded upon appeal, the uninsured employer or the fund,
whichever made payment, shall be entitled to reimbursement in a sum
equal to the compensation in dispute paid by such party to the
respondent pending adjudication of the appeal, and, if the claim for
workers' compensation is disallowed, to a sum equal to the amount of the
doctor's bills paid by such party pending adjudication of the appeal.
Such reimbursement shall be paid from administration expenses as
provided in section one hundred fifty-one of this chapter upon vouchers
approved by the chair. To the extent of any reimbursement to the fund,
the uninsured employer shall be entitled to reimbursement from the fund
for payments made into the fund in accordance with subdivision one of
this section.
6-a. In the event that the board is unable to determine the identity
of the responsible insurance carrier for the employer within thirty days
of the filing of a new claim, the board shall:
(a) appoint the uninsured employers' fund as the responsible party
until such time as the identity of the responsible insurance carrier for
the employer is determined. Upon such appointment, the uninsured
employers' fund shall immediately commence payments and provide medical
care in accordance with the provisions of this chapter;
(b) schedule a hearing to determine the identity of the responsible
insurance carrier for the employer and to determine such claim for
compensation in accordance with the provisions of subdivision one of
this section; and
(c) provide notice of such claim and hearing to the employer by
certified mail, return receipt requested, with a direction that the
employer provide proof of having insurance in effect as provided by
section ten of this article.
7. All the rights, powers, and benefits of the employer under section
twenty-nine of this chapter shall become the rights, powers and benefits
of the fund in any case in which the fund has paid or is paying
compensation to an injured employee or his dependents under this
section. If the employer has also paid compensation to or on behalf of
the injured employee or his dependents in such case any recovery by the
fund pursuant to subdivision one of section twenty-nine shall first be
applied to repayment of any awards paid by the fund to or on behalf of
the injured employee or his dependents in such case, the balance then
applied to any outstanding unsatisfied demand for security in said case
and assessments imposed against the employer pursuant to the provisions
of this section, the remainder, if any, to be returned to the employer.
If the employer has also paid compensation to or on behalf of the
injured employee or his dependents in such case, that portion, if any,
of a recovery by the fund pursuant to subdivision two of section
twenty-nine which is in excess of the total amount of compensation
awarded to or on behalf of such injured employee or his dependents and
the reasonable and necessary expenditures incurred in effecting such
recovery shall be apportioned between the injured employee or his
dependents and the fund in the manner provided in said subdivision two.
The balance of said recovery shall first be applied to reimburse the
fund for its reasonable and necessary expenditures in effecting such
recovery and the remainder shall be applied to repayment of any award
paid by the fund to or on behalf of the injured employee or his
dependents in such case. If there still remains a balance it shall first
be applied to the outstanding unsatisfied demand for security, if any,
in said case and assessments, if any, imposed against the employer
pursuant to the provisions of this section; the remainder, if any, to be
returned to the employer.
7-a. Notwithstanding any other provision of section twenty-nine of
this article to the contrary, a compromise by the claimant of his or her
cause of action as set forth in said section twenty-nine of this
article, in an amount less than the sum paid to or on behalf of the
claimant from the uninsured employers' fund, shall be made only with the
written consent of the chair.
8. The provisions of this section with respect to the liability of the
uninsured employers' fund to pay awards against uninsured defaulting
employers shall apply only to claims wherein the injury shall occur on
or after the first day of October, nineteen hundred sixty-two, or
wherein death shall occur as the result of an injury sustained on or
after the aforesaid first day of October.
9. The chairman may make reasonable regulations for the processing and
payment of compensation out of the uninsured employers' fund.
10. The liability of the chairman, the commissioner of taxation and
finance, the fund and the state of New York with respect to payment of
any compensation, benefits, expenses, fees or disbursements properly
chargeable against the uninsured employers' fund shall be limited to the
assets in said fund and they shall not otherwise in any way or manner be
liable for the making of any such payment.
11. All assessments payable pursuant to the provisions of this section
shall be liens against the assets of the employer liable therefor
without limit of amount, subordinate, however, to claims for unpaid
wages and prior recorded liens.
12. Whenever the term employer is used in this section it shall be
deemed to include without limitation a contractor liable for the payment
of compensation pursuant to section fifty-six of the workmen's
compensation law.
13. Notwithstanding any other provision of this chapter, in any case
of injury or death to the president, secretary, treasurer or any other
officer charged with the obligation of obtaining workers' compensation
insurance, of a corporation, any awards of compensation or medical
expenses payable to or on behalf of such officer or to his surviving
spouse, children and dependents as defined by section sixteen of this
article made against the corporation as an uninsured employer solely
because of the injury or death of such officer, shall in no event be the
liability of the uninsured employers' fund and shall not be payable
therefrom.
14. Notwithstanding any other provision of this chapter, in any case
of injury or death to a self-employed person or to a partner of a
partnership as defined in section ten of the partnership law, any awards
of compensation or medical expenses payable to or on behalf of such
self-employed person or partner of a partnership or to his surviving
spouse, children and dependents as defined by section sixteen of this
article made against the self-employed person or partnership as an
uninsured employer solely because of the injury or death of such
self-employed person or partner, shall in no event be the liability of
the uninsured employers' fund and shall not be payable therefrom.
Depositing future payments in the aggregate trust fund. 1. All
payments made into the fund pursuant to the provisions of this section
shall constitute an indivisible and aggregate trust fund except as
hereinafter provided.
2. If an award under this chapter requires payment of death benefits
or other compensation by an insurance carrier or employer in periodical
payments, the board may, in its discretion, at any time, any provision
of this chapter to the contrary notwithstanding, compute and permit or
require to be paid into the aggregate trust fund an amount equal to the
present value of all unpaid death benefits or other compensation in
cases in which awards are made for total permanent or permanent partial
disability for a period of one hundred and four weeks or more, for which
liability exists, together with such additional sum as the board may
deem necessary for a proportionate payment of expenses of administering
the fund so created, including the cost of the actuarial computation by
or on behalf of the board of the present value of the award, and for the
purposes of this section such cases shall be known as discretionary type
cases. If any such award made on or after July first, nineteen hundred
thirty-five, requires payment for total permanent disability resulting
from the loss of both hands, or both arms, or both feet, or both legs,
or both eyes, or of any two thereof, or for permanent partial disability
resulting from loss of an arm, leg, hand, foot or eye, or of death
benefits by an insurance carrier which is a stock corporation or mutual
association, or if any such award made on or after July first, two
thousand seven requires payment for permanent partial disability under
paragraph w of subdivision three of section fifteen of this article by
an insurance carrier which is a stock corporation or mutual association,
which for the purposes of this section shall be known as mandatory type
cases, the board shall immediately compute the present value thereof and
require payment of such amount into the aggregate trust fund, together
with such additional sum as the board may deem necessary for a
proportionate payment of expenses of administering such trust fund
including the cost of the actuarial computation by or on behalf of the
board of the present value of the award provided, however, that where an
employer or his insurance carrier is found to be entitled to
reimbursement from the special disability fund of subdivision eight of
section fifteen, the computation of the present value of the award and
the requirement for payment of such amount into the said trust fund
shall not be mandatory and such cases shall be deemed to be
discretionary type cases; further provided that where an employee
entitled to compensation under this chapter be injured or killed by the
negligence or wrong of another not in the same employ, the computation
of the present value and the requirement for payment of such amount into
the said trust fund shall be held in abeyance until (1) six months have
elapsed from the award of compensation, or in any event not more than
one year after the date of the accident, if the injured employee, or in
case of death, his personal representatives, spouse, parents, dependents
or next of kin, or anyone otherwise entitled to recover damages at
common law or otherwise, on account of such injury or death, have failed
to commence such action, (2) the termination of any such action brought
by the injured employee, or in case of death, his personal
representatives, spouse, parents, dependents or next of kin, or anyone
otherwise entitled to recover damages, at common law or otherwise, on
account of such injury or death, under the provisions of section
twenty-nine of this article.
3. Upon payment by an employer or insurance carrier into the aggregate
trust fund of an amount equal to the present value of all unpaid death
benefits or other compensation under any such award together with such
additional sum as the board may deem necessary for a proportionate
payment of expenses of administering such trust fund including the cost
of the actuarial computation by or on behalf of the board of the present
value of the award, such employer or insurance carrier shall be
discharged from any further liability for payment of such death benefits
or other compensation, and payment of the same as provided by this
chapter shall be assumed by the fund so created.
4. In the event of a review or appeal of any such award the value of
which has not been paid into the aggregate trust fund, if the amount of
award is modified or changed, the employer or insurance carrier shall
pay directly to the claimant compensation due to the date as of which
the present value of future benefits is payable into such fund, and to
the said fund the present value of future benefits, but if the original
award is affirmed, the employer or insurance carrier shall pay to such
fund the present value of the award computed as of the effective date of
the original award and simple interest on such amount at the industry
standard rate, as determined by the superintendent of financial services
by regulation, computed from the date of the original award to the date
that payment is made into such fund, plus simple interest at the rate
provided in section five thousand four of the civil practice law and
rules, on past due payments of compensation to the date of the
affirmance of such award, which past due payment and interest shall be
made directly to the claimant. The foregoing provision shall apply in
the event of such review or appeal regardless of whether the widow or
widower or other parties in interest have died or the widow or widower
remarried subsequent to the date as of which the present value of the
original award was computed. If any award, the present value of which
has been paid into the aggregate trust fund, is subsequently modified or
changed by the board for any reason other than because of subsequent
death or remarriage, the amount equal to the present value of the unpaid
death benefits or other compensation at the effective date of such
modification or change shall be computed on the basis both of the
original award and of the modified or changed award. If such amount is
greater on the basis of the original award, the difference shall be paid
by said trust fund to the employer or insurance carrier minus the cost,
if any, of the actuarial computation made by or on behalf of the board.
If such amount is greater on the basis of the modified or changed award,
the difference shall be paid to said trust fund by such employer or
insurance carrier in addition to the cost, if any, of the actuarial
computation made by or on behalf of the board. In the case of an
accident, occurring on or subsequent to July first, nineteen hundred
thirty-nine, where the present value of an award for permanent total or
permanent partial disability other than award for a definite number of
weeks has been paid into the aggregate trust fund, if an award is made
for death resulting from the injury causing the said disability, the
employer or insurance carrier which paid the present value of said
disability award into such fund shall be entitled to the difference
between the amount paid into such fund and the sum disbursed from such
fund to the injured employee prior to his or her death, plus simple
interest on such difference at the industry standard rate. In the case
of an accident occurring on or subsequent to July first, nineteen
hundred thirty-nine, where the present value of an award for permanent
partial disability for a definite number of weeks has been paid into the
aggregate trust fund, if the injured employee dies prior to the end of
such definite number of weeks, the employer or insurance carrier which
made the said payment into such fund shall be entitled to the present
value of the unexpended disability benefits not payable to beneficiaries
computed on the basis of annuities certain with interest at the industry
standard rate, minus however the cost, if any, of the actuarial
computation made by or on behalf of the board. In the case of a claim
for the death of an employee resulting from an accident occurring on or
subsequent to January first, two thousand one, the present value of an
award paid into the aggregate trust fund shall be calculated based on
the assumption that any child while under the age of twenty-three years
will be enrolled and attending as a full time student in an accredited
educational institution and would thereby be entitled to benefits for
all periods while under the age of twenty-three years. After all such
children reach the age of twenty-three, the aggregate trust fund shall
refund to the carrier which paid such present value into such fund the
portion of such present value representing benefits for which such
children were not actually entitled because they were not enrolled and
attending as a full time student in an accredited educational
institution plus simple interest on such difference at the industry
standard rate.
5. All computations made by the board shall be upon the basis of the
survivorship annuitants table of mortality, the remarriage tables of the
Dutch Royal Insurance Institution and interest at three and one-half per
centum per annum on claims based on accidents occurring up to and
including June thirtieth, nineteen hundred thirty-nine, at three per
centum per annum on claims based on accidents occurring from July first,
nineteen hundred thirty-nine up to and including August thirty-first,
nineteen hundred eighty-three, at six per centum per annum on claims
based on accidents occurring from September first, nineteen hundred
eighty-three up to and including December thirty-first, two thousand and
at the industry standard rate on claims based on accidents occurring
thereafter, except (a) that computations of present values of death
benefits required to be paid into the aggregate trust fund by an
insurance carrier which is a stock corporation or a mutual association
shall be based, in the case of a dependent parent, grandparent, blind or
physically disabled child or spouse, upon said table of mortality
disregarding possible change in or termination of dependency, with
interest at three and one-half per centum per annum on claims based on
accidents occurring up to and including June thirtieth, nineteen hundred
thirty-nine, at three per centum per annum on claims based on accidents
occurring from July first, nineteen hundred thirty-nine up to and
including August thirty-first, nineteen hundred eighty-three, at six per
centum per annum on claims based on accidents occurring from September
first, nineteen hundred eighty-three up to and including December
thirty-first, two thousand and at the industry standard rate on claims
based on accidents occurring thereafter and (b) that computations of
present values of permanent partial disability benefits awarded for a
definite number of weeks shall be on the basis of annuities certain with
interest at three and one-half per centum per annum on claims based on
accidents occurring up to and including June thirtieth, nineteen hundred
thirty-nine, at three per centum per annum on claims based on accidents
occurring from July first, nineteen hundred thirty-nine up to and
including August thirty-first, nineteen hundred eighty-three, at six per
centum per annum on claims based on accidents occurring from September
first, nineteen hundred eighty-three up to and including December
thirty-first, two thousand and at the industry standard rate on claims
based on accidents occurring thereafter.
6. Such aggregate trust fund shall be kept separate and apart from all
other moneys of the state insurance fund, and shall not be liable for
any losses or expenses of administration of the state insurance fund
other than the expenses involved in the administration of such trust
fund including the cost, if any, of the actuarial computations made on
behalf of the board, nor shall the state insurance fund be charged with
the losses or expenses of the aggregate trust fund beyond the amount of
such trust fund. Any portion of such aggregate trust fund may, by order
of the commissioners of the state insurance fund, approved by the
superintendent of financial services, be invested in or loaned on the
pledge of the same securities as provided in section eighty-seven of
this chapter for the investment of the state insurance fund, and the
commissioners may, upon like approval of the superintendent of financial
services, also sell any such securities. Any securities belonging to the
aggregate trust fund may be loaned by the commissioners of the state
insurance fund, with the approval of the superintendent of financial
services, under a security loan agreement as provided by section
eighty-seven of this chapter for securities belonging to the state
insurance fund.
7. For the purpose of securing the solvency of the aggregate trust
fund, there shall be required, in addition to the payments hereinbefore
provided for, a payment on each award, as follows:
(a) In the mandatory type cases based on an accident occurring on or
subsequent to July first, nineteen hundred forty-one up to and including
June thirtieth, nineteen hundred forty-three an amount equal to six per
centum of the present value of each such case paid into such fund;
(b) In the mandatory type cases based on an accident occurring on or
subsequent to July first, nineteen hundred forty-three an amount equal
to ten per centum of the present value of each such case paid into such
fund;
(c) In the discretionary type cases based on an accident occurring up
to and including June thirtieth, nineteen hundred thirty-nine an amount
equal to sixteen per centum of the present value of each such case paid
into such fund;
(d) In the discretionary type cases based on an accident occurring on
or subsequent to July first, nineteen hundred thirty-nine an amount
equal to ten per centum of the present value of each such case paid into
such fund.
Such additional payments shall be required until the surplus of the
fund equals or exceeds one per centum of the total outstanding loss
reserves as shown by three successive annual reports of the fund to the
superintendent of financial services and such additional payment shall
be required as a payment upon each award based on an accident occurring
prior to July first next succeeding the third such annual report, but
not as a payment upon any award based on an accident occurring on or
after said July first; provided, however, that if and when the surplus
of the fund as shown by any annual report thereafter shall be less than
one per centum of the total outstanding loss reserves, then the
additional payments as provided in paragraphs (a), (b), (c) and (d) of
this subdivision shall be resumed and shall be payable upon any award
based on an accident occurring on or after July first next succeeding
the close of the year for which such annual report is made. Thereafter,
the suspension or resumption of additional payments as required by this
subdivision shall be governed by the foregoing provisions. Such loss
reserves shall be computed based upon the tables specified in
subdivision five of this section and interest at a standard to be
determined by the superintendent of financial services by regulation.
8. In the case of a claim concerning which the aggregate trust fund
enters a waiver agreement pursuant to section thirty-two of this
article, the insurance carrier, as defined in subdivision twelve of
section two of this chapter, which paid the present value of the award
for such claim, shall not be entitled to a refund of any portion of the
present value of such award.
Investments in obligations of designated public benefit
corporations; indemnifications. 1. The aggregate trust fund, and all
state officers with responsibility for the custody or investment of such
fund or of its assets, are authorized and directed to take any and all
actions necessary or appropriate to cause such fund to make purchases,
in accordance with a schedule to be established, subject to amendment
from time to time, by the state director of the budget in the aggregate
principal amount of seventy-five million dollars, of obligations of the
state of New York and of any one or more of the following public benefit
corporations: the New York state housing finance agency, including, but
not limited to, obligations secured by second mortgages on housing
projects insured by the Federal government or an agency thereof, the New
York state medical care facilities finance agency, the dormitory
authority and the New York state environmental facilities corporation.
The schedule of obligations to be purchased pursuant to this section may
include, but shall not be limited to, short term obligations of the
housing finance agency for purposes of proviving a bridge loan for the
financing of housing projects, in anticipation of the receipt of
proceeds from Federal mortgage insurance on such housing projects or
such other proceeds as may become available. Such schedule may be
amended from time to time to provide for the renewal, refunding,
redemption or repayment of notes purchased by the aggregate trust fund
in accordance with the schedule, or for the conversion of such notes
into bonds or other long term obligations, provided that at no time
shall the total aggregate amount of obligations held by the aggregate
trust fund pursuant to the provisions of this section exceed
seventy-five million dollars. The terms and conditions of such
obligations, including the times of purchase and maturities thereof and
the rates of interest thereon, shall be determined by the state
comptroller in the case of state obligations or by the public benefit
corporation issuing the obligations, provided such terms and obligations
are found to be fair and reasonable by the state superintendent of
financial services.
2. Notwithstanding any general or special provision of law to the
contrary, in order to obtain the monies necessary to purchase the
obligations required by subdivision one of this section, the
commissioners of the state insurance fund, in accordance with rules and
regulations adopted by such commissioners, shall have the right (i) to
borrow an amount not exceeding the obligation incurred by the aggregate
trust fund pursuant to this section, and to pledge as collateral
therefor such assets as they may deem advisable, (ii) to sell any fund
assets under an agreement or option for the repurchase thereof from
monies or assets in the fund or (iii) to sell fund assets on such terms
and conditions as are found to be fair and reasonable by the state
superintendent of financial services.
3. It is hereby found and declared that any and all obligations of the
state of New York, the New York state housing finance agency, the New
York state medical care facilities finance agency, the dormitory
authority and the New York state environmental facilities corporation,
are reasonable, prudent, proper and legal investments for the aggregate
trust fund and for all state officers with responsibility for the
custody or investment of such fund or of its assets.
4. Notwithstanding any other provision of law, no state officer with
responsibility for the custody or investment of the aggregate trust fund
or of its assets, or for the approval of the sale or investment of such
assets, nor any investment advisor, attorney, accountant or actuary who
shall have been employed by or shall have advised such officer, shall
incur or suffer any liability whatsoever to any person by reason of
actions taken pursuant to the authorization and direction of subdivision
one or two of this section. Any action which could have been brought
against any aforementioned state officer, investment advisor, attorney,
accountant or actuary, except for the provisions of this subdivision,
may be brought against the aggregate trust fund.
5. a. Notwithstanding any other provision of law, including the
provisions of section seventeen of the public officers law, the
aggregate trust fund and the state, jointly and severally, shall save
harmless and indemnify each and every state officer with responsibility
for the custody or investment of such fund or of its assets or for the
approval of the sale or investment of such assets, and any investment
advisor, attorney, accountant or actuary who shall have been employed by
or who shall have advised such officer, and the state shall save
harmless and indemnify the aggregate trust fund, from any and all
financial loss and expense arising out of or in connection with any
claim, demand, suit, action, proceeding or judgment for alleged
negligence, gross negligence, waste or breach of fiduciary duty, or
incapacity of any kind by reason of any transaction pursuant to the
authorization and direction of subdivision one or two of this section,
provided that such officer, investment advisor, attorney, accountant or
actuary shall, within five days after the date on which he is personally
served with, or receives actual notice of, any summons, complaint,
process, notice, demand, claim or pleading, give notice thereof to such
fund or the attorney general. Upon such notice the aggregate trust fund
and the attorney general shall, if so requested, assume control of the
representation of such officer or investment advisor, attorney,
accountant or actuary, in connection with such claim, demand, suit,
action or proceeding. Each person so represented shall cooperate fully
with the fund and the attorney general or any other person designated to
assume such defense in respect of such representation or defense.
b. Notwithstanding any provision of law to the contrary, the state
shall also save harmless and indemnify the aggregate trust fund for any
and all financial loss and expense arising out of or in connection with
any claim, demand, suit, action, proceeding or judgment rendered
thereupon against such fund pursuant to subdivision four hereof,
provided that such fund shall, within five days after the date on which
it is served with, or receives actual notice of, any summons, complaint,
process, notice, demand, claim or pleading, give notice thereof to the
attorney general. Upon such notice the attorney general shall assume
control of the representation of such fund in connection with such
claim, demand, suit, action or proceeding. The fund shall cooperate
fully with the attorney general or any other person designated to assume
such defense in respect of such representation or defense.
Amortization of gains or losses. Gains or losses realized by
the aggregate trust fund as a result of transactions made pursuant to
subdivision two of section twenty-seven-a, or section twenty-seven-c of
this chapter, shall be transferred to a special asset account to be
known as the deferred charge on account of security transactions and
shall be amortized within such account on a basis which matches as
nearly as possible all gains or losses so realized against any increase
or decrease in income resulting from the reinvestment of the proceeds of
such transactions, provided that the period of amortization of the gain
or loss resulting from the disposition of each investment shall not be
longer than the unexpired period from the date of such disposition to
the maturity of the investment so disposed of, or on such other basis as
the superintendent of financial services may authorize in his
discretion.
Appropriations to the aggregate trust fund. 1.
Notwithstanding any other provision of law, the aggregate trust fund,
hereinafter referred to as the fund, and all state officers with
responsibility for the custody or investment of such fund or of its
assets, shall annually, no later than November first in each year,
submit to the director of the budget a request for an appropriation of
one hundred sixty million dollars. The governor shall include such
amount in a budget bill for the next state fiscal year. The state
comptroller shall encumber the amount so appropriated before the end of
the fiscal year for which any such appropriation is made. If for any
fiscal year commencing on or after April first, nineteen hundred
eighty-three, the governor fails to submit a budget bill containing an
appropriation in the amount requested by the fund or the legislature
fails to appropriate the amount in a budget bill submitted by the
governor for such fiscal year, the amount appropriated for and
encumbered during the preceding fiscal year shall be payable forthwith
to the fund on the first day of July of such year in the manner
prescribed by law, provided, however, that such amount shall not exceed
the amount of moneys transferred to the general fund by the fund
pursuant to the provisions of chapter fifty-five of the laws of nineteen
hundred eighty-two and chapter seven of the laws of nineteen hundred
eighty-nine.
2. Notwithstanding any other provision of law, the fund and all state
officers with responsibility for the custody or investment of such fund
or of its assets shall annually, no later than November first in each
year, submit to the director of the budget the fund's additional request
for an appropriation of sixty million dollars and the governor shall
include such additional amount in a budget bill for the next state
fiscal year. The state comptroller shall encumber the amount so
appropriated before the end of the fiscal year for which any such
appropriation is made. If for any fiscal year commencing on or after
April first, nineteen hundred ninety the governor fails to submit a
budget bill containing an appropriation in the amount requested by the
fund or the legislature fails to appropriate the amount in a budget bill
submitted by the governor for such fiscal year, the amount appropriated
for and encumbered during the preceding fiscal year shall be payable
forthwith to the fund on the first day of July of such year in the
manner prescribed by law, provided, however, that such amount shall not
exceed the amount of moneys transferred to the general fund by the fund
pursuant to the provisions of a chapter of the laws of nineteen hundred
eighty-nine.
3. It is hereby found and declared that any appropriation made as
provided for in subdivision one or two of this section shall be deemed
an admitted asset of the aggregate trust fund, and that any transfer of
moneys by the fund to the general fund in accordance with the provisions
of chapter fifty-five of the laws of nineteen hundred eighty-two,
chapter seven of the laws of nineteen hundred eighty-nine or a chapter
of the laws of nineteen hundred eighty-nine is deemed a proper and
prudent legal undertaking for any state officer with the responsibility
for the custody or the investment of the assets of the fund,
notwithstanding any other provision of law to the contrary.
Limitation of right to compensation. The right to claim
compensation under this chapter shall be barred, except as hereinafter
provided, unless within two years after the accident, or if death
results therefrom within two years after such death, a claim for
compensation shall be filed with the chairman, but the employer and
insurance carrier shall be deemed to have waived the bar of the statute
unless the objection to the failure to file the claim within two years
is raised on the first hearing on such claim at which all parties in
interest are present. The right of an employee to claim compensation
under this chapter for disablement caused by any occupational disease
including but not limited to compressed air illness or its sequelae,
silicosis or other dust disease, latent or delayed pathological bone,
blood or lung changes or malignancies due to occupational exposure to or
contact with arsenic, benzol, beryllium, zirconium, cadmium, chrome,
lead or fluorine or to exposure to x-rays, radium, ionizing radiation,
radio-active substances, or any other chemical compound shall not be
barred by the failure of the employee to file a claim within such period
of two years, provided such claim shall be filed after such period of
two years and within two years after disablement and after the claimant
knew or should have known that the disease is or was due to the nature
of the employment. No case in which an advance payment is made to an
employee or to his dependents in case of death shall be barred by the
failure of the employee or his dependents to file a claim, and the board
may at any time order a hearing on any such case in the same manner as
though a claim for compensation had been filed.
Remedies of employees; subrogation. 1. If an employee entitled
to compensation under this chapter be injured or killed by the
negligence or wrong of another not in the same employ, such injured
employee, or in case of death, his dependents, need not elect whether to
take compensation and medical benefits under this chapter or to pursue
his remedy against such other but may take such compensation and medical
benefits and at any time either prior thereto or within six months after
the awarding of compensation or within nine months after the enactment
of a law or laws creating, establishing or affording a new or additional
remedy or remedies, pursue his remedy against such other subject to the
provisions of this chapter. If such injured employee, or in case of
death, his dependents, take or intend to take compensation, and medical
benefits in the case of an employee, under this chapter and desire to
bring action against such other, such action must be commenced not later
than six months after the awarding of compensation or not later than
nine months after the enactment of such law or laws creating,
establishing or affording a new or additional remedy or remedies and in
any event before the expiration of one year from the date such action
accrues. In such case, the state insurance fund, if compensation be
payable therefrom, and otherwise the person, association, corporation or
insurance carrier liable for the payment of such compensation, as the
case may be, shall have a lien on the proceeds of any recovery from such
other, whether by judgment, settlement or otherwise, after the deduction
of the reasonable and necessary expenditures, including attorney's fees,
incurred in effecting such recovery, to the extent of the total amount
of compensation awarded under or provided or estimated by this chapter
for such case and the expenses for medical treatment paid or to be paid
by it and to such extent such recovery shall be deemed for the benefit
of such fund, person, association, corporation or carrier. Should the
employee or his dependents secure a recovery from such other, whether by
judgment, settlement or otherwise, such employee or dependents may apply
on notice to such lienor to the court in which the third party action
was instituted, or to a court of competent jurisdiction if no action was
instituted, for an order apportioning the reasonable and necessary
expenditures, including attorneys' fees, incurred in effecting such
recovery. Such expenditures shall be equitably apportioned by the court
between the employee or his dependents and the lienor. Notice of the
commencement of such action shall be given within thirty days thereafter
to the chairman, the employer and the insurance carrier upon a form
prescribed by the chairman. Any of the foregoing providers of
compensation and/or medical benefits which has recovered a lien pursuant
to the provisions hereof against the recovery of a person injured on or
after February first, nineteen hundred seventy-four and before July
first, nineteen hundred seventy-eight, through the use or operation of a
motor vehicle in this state, shall notify such person by certified mail
in a manner to be approved by the chairman and the superintendent of
financial services of the responsibility of an "insurer" (as defined in
subsection (g) of section five thousand one hundred two of the insurance
law), to reimburse such person under such circumstances to the extent
that the recovered lien represent first party benefits as defined in
article fifty-one of the insurance law.
1-a. Notwithstanding any other provision of this chapter, the state
insurance fund, if compensation and/or medical benefits be payable
therefrom, or otherwise the person, association, corporation, insurance
carrier or statutory fund liable for the payment of such compensation
and/or medical benefits shall not have a lien on the proceeds of any
recovery received pursuant to subsection (a) of section five thousand
one hundred four of the insurance law, whether by judgment, settlement
or otherwise for compensation and/or medical benefits paid which were in
lieu of first party benefits which another insurer would have otherwise
been obligated to pay under article fifty-one of the insurance law. The
sole remedy of any of the foregoing providers to recover the payments
specified in the preceding sentence shall be pursuant to the settlement
procedures contained in section five thousand one hundred five of the
insurance law.
1-b. Notwithstanding any other provision of this chapter to the
contrary, the state insurance fund, if compensation and/or medical
benefits be payable therefrom, or otherwise the person, association,
corporation, insurance carrier or statutory fund liable for the payment
of such compensation and/or medical benefits: (a) shall not have a lien
on the proceeds of any award from the September eleventh victim
compensation fund of two thousand one established pursuant to title IV
of the federal air transportation safety and system stabilization act,
public law 107-42, as amended; and (b) shall not terminate or reduce
such compensation and/or medical benefits based upon the submission of a
claim for an award from such federal fund, and/or the waiver or
compromise of any cause of action resulting from such submission.
2. If such injured employee, or in case of death, his dependents, has
taken compensation under this chapter but has failed to commence action
against such other within the time limited therefor by subdivision one,
such failure shall operate as an assignment of the cause of action
against such other to the state for the benefit of the state insurance
fund, if compensation be payable therefrom, and otherwise to the person,
association, corporation, or insurance carrier liable for the payment of
such compensation. Except as hereinafter provided, the failure of the
injured employee or his dependents to commence an action pursuant to the
provisions of subdivision one of this section, shall not operate as an
assignment of the cause of action as provided herein, unless the
insurance carrier shall have notified the claimant in writing by
personal service or by certified or registered mail, return receipt
requested, at least thirty days prior to the expiration of the time
limited for the commencement of an action by subdivision one, that such
failure to commence such action shall operate as an assignment of
whatever cause of action may exist to such insurance carrier. If the
insurance carrier shall fail to give such notice, the time limited for
the commencement of an action by subdivision one shall be extended until
thirty days after the insurance carrier shall have notified the claimant
in writing that failure to commence an action within thirty days after
the mailing of such notice shall operate as an assignment of the cause
of action to such carrier, and in the event the claimant fails to
commence such action within thirty days after the mailing of such
notice, such failure shall operate as an assignment of such cause of
action to such carrier. If such fund, person, association, corporation
or carrier, as such an assignee, recover from such other, either by
judgment, settlement or otherwise, a sum in excess of the total amount
of compensation awarded to such injured employee or his dependents and
the expenses for medical treatment paid by it, together with the
reasonable and necessary expenditures incurred in effecting such
recovery, it shall forthwith pay to such injured employee or his
dependents, as the case may be, two-thirds of such excess, and to the
extent of two-thirds of any such excess such recovery shall be deemed
for the benefit of such employee or his dependents. When the
compensation awarded requires periodical payments the number of which
cannot be determined at the time of such award, the board shall, when
the injury or death was caused by the negligence or wrong of another not
in the same employ, estimate the probable total amount thereof upon the
basis of the survivorship annuitants table of mortality, the remarriage
tables of the Dutch Royal Insurance Institution and such facts as it may
deem pertinent, and such estimate shall be deemed the amount of the
compensation awarded in such case, for the purpose of computing the
amount of such excess recovery, subject to the modification thereof as
hereinafter provided. If any of the foregoing providers, having paid
benefits under this chapter to an injured employee, who is also a
"covered person" (as defined in subsection (j) of section five thousand
one hundred two of the insurance law), and who was injured in a motor
vehicle accident in this state on and after February first, nineteen
hundred seventy-four and before July first, nineteen hundred
seventy-eight, maintains an action, as assignee, against such third
party, who is also a "covered person", and recovers, whether by
judgment, settlement or otherwise, it shall advise the injured employee,
by certified mail, in a manner to be approved by the chairman and the
superintendent of financial services, of the responsibility of an
"insurer" (as defined in subsection (g) of section five thousand one
hundred two of the insurance law) to further compensate such injured
employee.
2-a. Notwithstanding any other provisions of this chapter, the failure
of a "covered person" (as defined in subsection (j) of section five
thousand one hundred two of the insurance law), who has taken
compensation and/or medical benefits under this chapter for injuries
arising out of the use or operation of a motor vehicle in this state, to
commence an action against such other within the time limited therefor
by subdivision one of this section shall not operate as an assignment of
the cause of action to the provider thereof for their recovery when such
benefits were paid in lieu of first party benefits which another insurer
would have otherwise been obligated to pay under article fifty-one of
the insurance law, unless such other is not a "covered person". The sole
remedy of any of the foregoing providers to recover the payments
specified in the preceding sentence when the other party is a "covered
person" shall be pursuant to the settlement procedures contained in
section five thousand one hundred five of the insurance law.
3. In the event of a modification of an award increasing the
compensation previously awarded or in the event that the total amount of
periodical payments made pursuant to an award under which the number of
such payments could not be determined at the time of the award, shall
exceed the total thereof as estimated by the board, the principal of any
of such excess recovery theretofore paid to such injured employee or his
dependents shall be credited against such increase or such excess. In
the event of a modification of an award ending or diminishing the
compensation previously awarded or in the event that the total amount of
periodical payments made pursuant to an award under which the number of
such payments could not be determined at the time of the award, shall be
less than the total thereof as estimated by the board, such fund,
person, association, corporation or carrier shall forthwith pay to such
injured employee or his dependents, as the case may be, any additional
amount of such excess recovery to which such injured employee or his
dependents may be entitled by reason of such modification or such
deficiency, determined as hereinbefore provided.
4. If such injured employee, or in case of death, his dependents,
proceed against such other, the state insurance fund, person,
association, corporation, or insurance carrier, as the case may be,
shall contribute only the deficiency, if any, between the amount of the
recovery against such other person actually collected, and the
compensation provided or estimated by this chapter for such case.
5. In case of the payment of an award to the commissioner of taxation
and finance in accordance with subdivisions eight and nine of section
fifteen and in accordance with section twenty-five-a such payment shall
operate to give to the employer or insurance carrier liable for the
award a cause of action for the amount of such payment together with the
reasonable funeral expenses and the expense of medical treatment which
shall be in addition to any cause of action by the legal representatives
of the deceased. Such a cause of action assigned to the state may be
prosecuted or compromised in the name of the state insurance fund by the
commissioners of the state insurance fund. A compromise of any such
cause of action by the employee or his dependents at an amount less than
the compensation provided for by this chapter shall be made only with
the written approval of the commissioners of the state insurance fund or
such officer thereof designated by them, if the deficiency of
compensation would be payable from the state insurance fund, and
otherwise with the written approval of the person, association,
corporation, or insurance carrier liable to pay the same. However,
written approval of the commissioners of the state insurance fund or
such officer thereof designated by them or written approval of the
person, association, corporation, or the insurance carrier need not be
obtained if the employee or his dependents obtain a compromise order
from a justice of the court in which the third-party action was pending.
The papers upon an application to compromise and settle such a claim
shall consist of the petition, the affidavit of the attorney, and the
affidavit of one or more physicians.
The petition shall contain the following:
a. The name and residence of the petitioner if the employee, or
petitioner's relationship to the deceased;
b. The date of accident and a general description thereof;
c. The nature and extent of the damages sustained, including the name
of the physician or physicians attending or consulting in the treatment
and the medical expenses incurred, the period of disability resulting
from the accident, the total amount of wages lost thereby, and the
present physical condition;
d. The terms of the attorney's retainer and of the proposed settlement
and petitioner's approval thereof; and
e. Whether any previous application for the settlement of the claim
has been made, and if so, the time and the court or justice thereof and
the disposition made of same.
The affidavit of the attorney shall set forth by whom, on what date
and under what terms he was retained, the services rendered by him, his
fee if the settlement is approved, the acts complained of, the terms of
the proposed settlement with a statement of his reasons for recommending
the same, and shall state that he has not become concerned in the
application or its subject matter at the instance of such defendant
directly or indirectly and that he has not received and is not to
receive any compensation from such defendant directly or indirectly.
The affidavit of the physician in a claim arising from personal injury
to the employee, shall set forth his connection with the case; the
period covered by the treatment and the nature, duration and extent of
the injuries; the date of his last examination and the condition of the
employee at that time; whether or not the employee is still suffering
any disability or inconvenience as the result of the injury, giving the
details thereof; whether or not the accident has left the employee with
any permanent disability, defect, scar or impairment; the cost of the
treatment and whether or not he expects to be paid or has been paid by
the defendant or by anyone acting on the defendant's behalf. Where the
affidavit as to the present condition is not made by the attending
physician, the latter's affidavit setting forth the character of the
injuries and treatment should also be attached, or the failure to obtain
it explained. Where the employee was confined to a hospital, the court
may require the production of hospital records.
A copy of the papers to be used on the application to compromise and
settle the claim must be served as directed by the court or in the same
manner as provided in the civil practice law and rules for a notice of
motion upon the commissioners of the state insurance fund or such
officer thereof designated by them or upon the person, association,
corporation, or insurance carrier, whose written approval would have
been required to compromise such cause of action by the employee or his
dependents. This notice shall afford them the opportunity to submit
affidavits and to be heard by the court on the application.
If the third-party action is on trial at the time the offer of
settlement which is acceptable to the plaintiff, is made and either such
written approval or order as provided in this subdivision is required,
the action may be marked settled subject to the securing of such written
approval or such order. If such written approval or such order is not
subsequently secured within three months the action shall be restored to
the head of the trial day calendar.
6. The right to compensation or benefits under this chapter, shall be
the exclusive remedy to an employee, or in case of death his or her
dependents, when such employee is injured or killed by the negligence or
wrong of another in the same employ, the employer's insurer or any
collective bargaining agent of the employer's employees or any employee,
of such insurer or such collective bargaining agent (while acting within
the scope of his or her employment). The limitation of liability of an
employer set forth in section eleven of this article for the injury or
death of an employee shall be applicable to another in the same employ,
the employer's insurer, any collective bargaining agent of the
employer's employees or any employee of the employer's insurer or such
collective bargaining agent (while acting within the scope of his or her
employment). The option to maintain an action in the courts for damages
based on the employer's failure to secure compensation for injured
employees and their dependents as set forth in section eleven of this
article shall not be construed to include the right to maintain an
action against another in the same employ, the employer's insurer, any
collective bargaining agent of the employer's employees or any employee
of the employer's insurer or such collective bargaining agent (while
acting within the scope of his or her employment).
* § 30. Revenues or benefits from other sources not to affect
compensation. No benefits, savings or insurance of the injured employee,
independent of the provisions of this chapter, shall be considered in
determining the compensation or benefits to be paid under this chapter,
except that (1) in case of the death of an employee of the state, a
municipal corporation or any other political subdivision of the state,
any benefit payable under a pension system or any other statutory
benefit which is not sustained or provided for in whole or in part by
the contribution of the employee, may be applied toward the payment of
the death benefit provided by this chapter; (2) in case of an award of
compensation to a paid firefighter of a fire company or fire department
of a city of less than one million population, or town, village or fire
district any salary or wages paid to, or the cost of any medical
treatment and hospital care provided for, such paid firefighter under
and pursuant to the provisions of section two hundred seven-a of the
general municipal law shall be credited against any award of
compensation to such paid firefighter under this chapter where the
injury occurred or disablement arose on or after May first, nineteen
hundred fifty-one; and (3) in case of an award of compensation to a
member of a police force of any county, city of less than one million
population, town or village, or of any district, agency, board, body or
commission thereof, any salary or wages paid to, or the cost of any
medical treatment or hospital care provided for, such member under and
pursuant to the provisions of section two hundred seven-c of the general
municipal law shall be credited against any award of compensation to
such member under this chapter where the injury occurred or the
disablement arose on or after May first, nineteen hundred sixty-three.
* NB Effective until the first day of the calendar month following
receipt by the comptroller of the election by The Long Island Rail Road
Company
* § 30. Revenues or benefits from other sources not to affect
compensation. No benefits, savings or insurance of the injured employee,
independent of the provisions of this chapter, shall be considered in
determining the compensation or benefits to be paid under this chapter,
except that (1) in case of the death of an employee of the state, a
municipal corporation, any other political subdivision of the state,
including for this purpose The Long Island Rail Road Company, any
benefit payable under a pension system or any other statutory benefit
which is not sustained or provided for in whole or in part by the
contribution of the employee, may be applied toward the payment of the
death benefit provided by this chapter; (2) in case of an award of
compensation to a paid firefighter of a fire company or fire department
of a city of less than one million population, or town, village or fire
district any salary or wages paid to, or the cost of any medical
treatment and hospital care provided for, such paid firefighter under
and pursuant to the provisions of section two hundred seven-a of the
general municipal law shall be credited against any award of
compensation to such paid firefighter under this chapter where the
injury occurred or disablement arose on or after May first, nineteen
hundred fifty-one; and (3) in case of an award of compensation to a
member of a police force of any county, city of less than one million
population, town or village, any district, agency, board, body or
commission thereof, or of The Long Island Rail Road Company, any salary
or wages paid to, or the cost of any medical treatment or hospital care
provided for, such member under and pursuant to the provisions of
section two hundred seven-c of the general municipal law shall be
credited against any award of compensation to such member under this
chapter where the injury occurred or the disablement arose on or after
May first, nineteen hundred sixty-three, or in the case of The Long
Island Rail Road Company, on or after the date this section is effective
with respect to members of its police force.
* NB Effective the first day of the calendar month following receipt
by the comptroller of the election by The Long Island Rail Road Company
Agreement for contribution by employee void. No agreement by an
employee to pay any portion of the premium paid by his employer to the
state insurance fund or to contribute to a benefit fund or department
maintained by such employer or to the cost of mutual insurance or other
insurance, maintained for or carried for the purpose of providing
compensation as herein required, shall be valid, and any employer who
makes a deduction for such purpose from the wages or salary of any
employee entitled to the benefits of this chapter shall be guilty of a
misdemeanor.
Waiver agreements. No agreement or release except as otherwise
provided in this chapter by an employee to waive his right to
compensation under this chapter shall be valid.
(a) Whenever a claim has been filed, the claimant or the deceased
claimant's dependents and the employer, its carrier, the special
disability fund as set forth in subdivision (e) of this section, or the
aggregate trust fund, if the board has directed that the present value
of any unpaid compensation be paid into such fund pursuant to section
twenty-seven of this article, may enter into an agreement settling upon
and determining the compensation and other benefits due to the claimant
or his or her dependents. The agreement shall not bind the parties to
it, unless it is approved by the board. Such agreements, when so
approved, notwithstanding any other provisions, shall be final and
conclusive upon the claimant, the claimant's dependents, the employer,
its insurance carrier, the aggregate trust fund and the special
disability fund. Every insurance carrier as defined in subdivision
twelve of section two of this chapter shall offer each claimant the
opportunity to enter into an agreement settling upon and determining the
compensation and other benefits due, in the case of disability, within
two years after the date the claim was indexed by the board or six
months after the claimant is classified with a permanent disability,
whichever is later, and in the case of death, within six months after
entitlement to benefits is established for all beneficiaries. The offer
made by the insurance carrier shall clearly state what portion of the
offer is (i) for compensation as defined in subdivision six of section
two of this chapter, if any; (ii) for medical benefits, including
prescription medicine, if any; and (iii) for the fee of the attorney or
licensed representative, if any. If a claimant is represented by an
attorney or licensed representative, the insurance carrier shall present
such offer to such legal representative. If a claimant is not
represented by an attorney or a licensed representative, the insurance
carrier shall, in addition to the offer to enter into a settlement
agreement, provide the claimant with a statement of his or her rights,
obligations and potential liability if the offer is accepted.
(b) The agreement shall be approved by the board in a decision duly
filed and served unless:
(1) the board finds the proposed agreement unfair, unconscionable, or
improper as a matter of law;
(2) the board finds that the proposed agreement is the result of an
intentional misrepresentation of material fact; or,
(3) within ten days of submitting the agreement one of the interested
parties requests that the board disapprove the agreement.
(c) A decision duly filed and served approving an agreement submitted
to the board shall not be subject to review pursuant to section
twenty-three of this article. However, a decision duly filed and served
disapproving an agreement submitted to the board is subject to review
pursuant to section twenty-three of this article. If the board
disapproves of an agreement it shall duly file and serve a notice of
decision setting aside the proposed agreement.
(d) An agreement for compensation and other benefits covered by this
chapter may be modified at anytime by agreement of all interested
parties provided it is approved by the board.
(e) The chair shall establish an office under his or her supervision
to be known as the "waiver agreement management office," to negotiate
and seek board approval for waiver agreements on behalf of the special
disability fund. The office shall operate in accordance with guidelines
or directives that the chair may issue, as approved by the special
disability fund advisory committee, or in the absence of such guidelines
or directives, using such discounting factors as the office determines
are in the financial interest of the special disability fund. The waiver
agreement management office on behalf of the special disability fund may
enter into a waiver agreement with a claimant only when the special
disability fund has been found liable by the board to reimburse the
claimant's employer, insurance carrier or the state insurance fund.
Notwithstanding any other provisions of law, no consultation or approval
of any employer, insurance carrier, self-insurer or the state insurance
fund shall be required before such office may enter into any waiver
agreement, or before the board may approve such waiver agreement. The
chair may, in his or her discretion, and as approved by the special
disability fund advisory committee, terminate the operation of the
waiver agreement management office, if he or she believes it no longer
serves the interest of the special disability fund.
(f) A claimant's executed waiver agreement with the waiver agreement
management office shall be final and conclusive upon the claimant, the
claimant's dependents, and any employer, self-insurer, insurance
carrier, the state insurance fund and the special disability fund as to
all claims by the claimant, and as to any claim or request for
reimbursement from the special disability fund for payments not yet
made. The waiver agreement management office shall give written notice
to any employer, insurance carrier or the state insurance fund entitled
to receive reimbursement from the special disability fund in regard to
any claimant, of any waiver agreement signed by the office with such
claimant within fourteen days of submitting the waiver agreement to the
board for approval.
(g) Nothing in this section shall prohibit any insurance carrier,
employer, the state insurance fund, or the waiver agreement management
office on behalf of the special disability fund from jointly entering
into a waiver agreement with a claimant, by which the joint signatories
may apportion responsibility for making any payments required under the
agreement. The agreement shall set forth the obligations of the
signatories to make such payments, and shall identify, as to each
obligation thereunder: (1) the signatory that has the legal obligation
to carry out that provision, or (2) that all signatories are jointly and
severally liable under the provision.
(h) Neither the establishment of the waiver agreement management
office, nor any action taken by that office, shall serve as grounds for
the board's disapproval of any waiver agreement to which the office is
not a party, or otherwise permit any party to withdraw from such a
waiver agreement.
(i) (1) The waiver agreement management office may contract with an
insurance carrier, self-insured employer, state insurance fund or any
third party to assume liability for, manage, administer, or settle
claims on its behalf, so long as (A) such contract is approved by the
special disability fund advisory committee and (B) such party shall
agree to be subject to any guidelines or directives as the chair may
issue.
(2) The chair may, with approval of the special disability fund
advisory committee and on such terms as the committee deems appropriate,
procure one or more private entities to assume the liability for and
manage, administer, or settle all or a portion of the claims in the
special disability fund including, without limitation, by obtaining "an
assumption of workers' compensation liability insurance policy" as
defined in subdivision three of section fifty of this chapter. Any such
policy shall expressly provide and, notwithstanding any other provision
of law, operate to release from any further liability (i) the special
disability fund and (ii) the insurance carrier, including as the case
may be the state insurance fund, originally liable for any claim covered
by the assumption of workers' compensation liability insurance policy
securing such further and future contingent liability as may arise from
any such claim, including from prior injuries to employees and be
incurred by reason of any change in the condition of such employees for
payment of additional compensation. Notwithstanding any other provisions
of law, no consultation or approval of any employer, insurance carrier,
self-insurer or the state insurance fund shall be required before such
office may enter into any such policy of waiver agreement, or before the
board may approve such waiver agreement. Any such procurement shall be
conducted in accordance with state finance law, except as otherwise set
forth below. The chair shall not award any contract that has not been
approved by the special disability fund advisory committee.
Notwithstanding the foregoing, the chair of the workers' compensation
board may, if approved by the special disability fund advisory
committee, and on such terms as the committee deems appropriate:
(A) waive any informality in a bid, and either reject all bids and
again advertise for bids, or interview at least two responsible
qualified bidders and negotiate and enter into a contract with one or
more of such bidders; or
(B) group claims to be assigned, in whole or in part, based on the
insurance carrier, self-insured employer or state insurance fund that is
receiving or will receive reimbursement on those claims from the second
disability fund. Such grouping shall be permissible notwithstanding that
any insurance carrier may have greater access to information, or may be
able to provide better terms, in regard to claims so grouped.
(3) Any policy executed by the chair pursuant to this section shall be
in the form of an assumption of workers' compensation liability
insurance policy securing such further and future contingent liability
as may arise from any claim covered by such policy, including prior
injuries to workers and be incurred by reason of any change in the
condition of such workers warranting the board making subsequent awards
for payment of additional compensation. Such policy shall be in a form
approved by the superintendent of financial services and issued by the
state insurance fund or any insurance company licensed to issue this
class of insurance in this state, or deemed acceptable as an issuer upon
application by the chair to the superintendent as specified in
subdivision three of section fifty of this chapter. In the event that
such policy is issued by an insurance company other than the state
insurance fund, then said policy shall be deemed of the kind specified
in paragraph fifteen of subsection (a) of section one thousand one
hundred thirteen of the insurance law and covered by the workers'
compensation security fund as created and governed by article six-a of
this chapter. Such policy shall only be issued for a single complete
premium paid in advance and in an amount deemed acceptable by the chair
and the superintendent of financial services. When issued such policy
shall be noncancellable without recourse for any cause during the
continuance of the liability secured and so covered.
(4) Notwithstanding any other provision of this article, the waiver
agreement management office may request in writing any information
relevant to its entry into or management of waiver agreements from (A)
any insurance carrier, employer, or the state insurance fund, if that
entity has submitted a claim for reimbursement from the special
disability fund as to the claimant to whom the information relates; or
(B) the special funds conservation committee. The party to whom the
request is made shall provide the requested information within fourteen
days of the request, unless before that date it files an objection with
the board to any information which is subject to a recognized privilege
or whose production is otherwise barred by law. The objecting party
shall provide the requested information within five business days of the
board's rejection of its objection.
(5) No carrier, self-insured employer or the state insurance fund
shall assume the liability for, or management, administration or
settlement of any claims under this section on which it holds reserves,
beyond such reserves as are permitted by regulation of the
superintendent of financial services for purposes of this provision. No
carrier may assume liability for any claims in the special disability
fund under this paragraph unless the carrier maintains, on a stand alone
basis, separate from its parent or any affiliated entities, an
interactive financial strength rating from a nationally recognized
statistical rating organization that is considered secure or deemed
acceptable by the special disability fund advisory committee.
(6) The director of the budget shall notify in writing the chairs of
the senate finance committee and the assembly ways and means committee
of any plans to transfer all or a portion of the portfolio of claims
determined to be eligible for reimbursement from the special disability
fund or to enter into an assumption of workers' compensation liability
insurance policy, not less than forty-five days prior to the
commencement of such process. At any time borrowing is anticipated to
settle claims, the chief executive officer of the dormitory authority of
the state of New York and the director of the budget shall provide a
report to the chairs of the senate finance committee and the assembly
ways and means committee on a planned bond sale of the authority and
such report shall include, but not be limited to: (A) the maximum amount
of bonds expected to be sold by the authority in connection with a sale
agreement; (B) the expected maximum interest rate and maturity date of
such bonds; (C) the expected amount of the bonds that will be fixed
and/or variable interest rate; (D) the estimated costs of issuance; (E)
the estimated level or levels of reserve fund or funds, if any; (F) the
estimated cost of bond issuance, if any; (G) the anticipated use or uses
of the proceeds; (H) the maximum expected net proceeds that will be paid
to the state as a result of the issuance of such bonds; and (I) the
process to be used to select parties to the transaction. Any such
expectations and estimates in the report shall not be deemed a
substantive limitation on the authority of the dormitory authority of
the state of New York.
Waivers of specific coverage prohibited. All employers doing
business in this state shall ensure that their employees working in New
York state are insured for all protections required under this chapter.
Waivers of coverage shall not be available to out of state employers.
Assignments; exemptions. Compensation or benefits due under this
chapter shall not be assigned, released or commuted except as provided
by this chapter, and shall be exempt from all claims of creditors and
from levy, execution and attachment or other remedy for recovery or
collection of a debt, which exemption may not be waived provided,
however, that compensation or benefits other than payments pursuant to
section thirteen of this chapter shall be subject to application to an
income execution or order for support enforcement pursuant to section
fifty-two hundred forty-one or fifty-two hundred forty-two of the civil
practice law and rules. Compensation and benefits shall be paid only to
employees or their dependents, except as hereinafter in this chapter
provided. In the case of the death of an injured employee to whom there
was due at the time of his or her death any compensation under the
provisions of this chapter, the amount of such compensation shall be
payable to the surviving spouse, if there be one, or, if none, to the
surviving child or children of the deceased under the age of eighteen
years, and if there be no surviving spouse or children, then to the
dependents of such deceased employee or to any of them as the board may
direct, and if there be no surviving spouse, children or dependents of
such deceased employee, then to his estate. An award for disability may
be made after the death of the injured employee.
Preferences. Compensation shall be a lien against the assets of
the carrier of employer without limit of amount subordinate, however, to
claims for unpaid wages and prior recorded liens. The provisions of this
section shall not apply to the state insurance fund with respect to
those liabilities and obligations assumed by the state pursuant to
section eighty-seven-d of this chapter or as the result of any insuring
agreement between the state insurance fund and the department of civil
service pursuant to section eighty-eight-c of this chapter. In such
instances compensation shall be alien against the assets of the state as
the employer.
Safety net. 1. Return to work. (a) The commissioner of labor
will issue a report to the governor, the speaker of the assembly, the
majority leader of the senate, and the chairs of the labor, ways and
means and finance committees of the assembly and senate on or before
December first, two thousand seven, making recommendations as to how to
assure that workers categorized by the board as permanently partially
disabled return to gainful employment to the greatest extent
practicable. Such commissioner will consider administrative and
legislative remedies, and shall include estimates of cost in the report.
The report shall examine best practices and the laws of other
jurisdictions, as well as any relevant programs authorized by New York
law. The report shall additionally examine return to work practices as
implemented by carriers, the state insurance fund, employers, and the
board. It shall also examine the relationship of vocational
rehabilitation to ultimate return to work.
(b) The commissioner of labor will be assisted by an advisory council
constituted of six persons appointed by the governor as follows:
(i) a representative of organized labor appointed upon recommendation
of the New York State American Federation of Labor-Congress of
Industrial Organizations;
(ii) a representative of the business community appointed upon
recommendation of the Business Council of New York State, Incorporated;
(iii) one person upon recommendation of the majority leader of the
senate;
(iv) one person upon recommendation of the speaker of the assembly;
and
(v) two other persons in the governor's discretion.
2. Total industrial disability. No provision of this article shall in
any way be read to derogate or impair current or future claimants'
existing rights to apply at any time to obtain the status of total
industrial disability under current case law.
3. Extreme hardship redetermination. In cases where the loss of
wage-earning capacity is greater than seventy-five percent, a claimant
may request, within the year prior to the scheduled exhaustion of
indemnity benefits under paragraph w of subdivision three of section
fifteen of this article, that the board reclassify the claimant to
permanent total disability or total industrial disability due to factors
reflecting extreme hardship.
4. Annual safety net reporting. The board, in conjunction with the
commissioner of labor and the superintendent of financial services,
shall track all claimants who have been awarded permanent partial
disability status and report annually on December first, beginning in
two thousand eight, to the governor, the speaker of the assembly, the
majority leader of the senate, and the chairs of the labor, ways and
means and finance committees of the assembly and senate:
(i) The number of said claimants who have:
(1) returned to gainful employment;
(2) been recategorized as being totally industrially disabled;
(3) remain subject to duration limitations set forth in paragraph w of
subdivision three of section fifteen of this article; and
(4) not returned to work, and whose indemnity payments have expired.
(ii) The additional steps the commissioner contemplates are necessary
to minimize the number of workers who have neither returned to work nor
been recategorized from permanent partial disability.
ARTICLE 3 Occupational Diseases
Definitions. Whenever used in this article: 1. "Disability"
means the state of being disabled from earning full wages at the work at
which the employee was last employed.
2. "Disablement" means the act of becoming so disabled as defined in
subdivision one.
Disablement treated as accident. The disablement of an employee
resulting from an occupational disease described in subdivision two of
section three shall be treated as the happening of an accident within
the meaning of this chapter and the procedure and practice provided in
this chapter shall apply to all proceedings under this article, except
where specifically otherwise provided herein.
Right to compensation. If an employee is disabled or dies and
his disability or death is caused by one of the diseases mentioned in
subdivision two of section three, and the disease is due to the nature
of the corresponding employment as described in such subdivision in
which such employee was engaged and was contracted therein, he or his
dependents shall be entitled to compensation for the duration of his
disablement or for his death in accordance with the provisions of
articles two and three of this chapter, provided, however, that if it
shall be determined that an employee so disabled is able to earn wages
at another occupation which shall be neither unhealthful nor injurious,
and such wages do not equal his full wages prior to the date of his
disablement, the compensation payable shall be computed pursuant to the
provisions of article two of this chapter.
Examining physicians. The chairman shall appoint one or more
physicians whose duty it shall be to examine any claimant under this
article and to make a report in such form as the chairman may require.
Date of disablement. For the purposes of this article the date
of disablement shall be such date as the board may determine on the
hearing on the claim.
Liability of employer. The total compensation due shall be
recoverable from the employer who last employed the employee in the
employment to the nature of which the disease was due and in which it
was contracted. If, however, such disease, except silicosis or other
dust disease and compressed air illness or its sequelae, was contracted
while such employee was in the employment of a prior employer, the
employer who is made liable for the total compensation as provided by
this section, may appeal to the board for an apportionment of such
compensation among the several employers who since the contraction of
such disease shall have employed such employee in the employment to the
nature of which the disease was due. Such apportionment shall be
proportioned to the time such employee was employed in the service of
such employers, and shall be determined only after a hearing, notice of
the time and place of which shall have been given to every employer
alleged to be liable for any portion of such compensation. If the board
finds that any portion of such compensation is payable by an employer
prior to the employer who is made liable for the total compensation as
provided by this section, it shall make an award accordingly in favor of
the last employer, and such award may be enforced in the same manner as
an award for compensation.
Liability of employer; silicosis or other dust diseases. The
employer in whose employment an employee was last exposed to an
injurious dust hazard shall be liable for the payments required by this
chapter when disability or death of the employee shall be due to
silicosis or other dust disease.
Liability of employer; compressed air illness. With respect to
claims filed after July first, nineteen hundred sixty-one, for
compensation on account of disability or death resulting from compressed
air illness or its sequelae, the employer who is made liable for the
total compensation as provided by section forty-four of this article,
shall not be entitled to an apportionment of such compensation among
prior employers.
Notice to employers. The employer to whom notice of death or
disability is to be given, or against whom claim is to be made by the
employee, shall be the employer who last employed the employee in the
employment to the nature of which the disease was due and such notice
and claim shall be deemed seasonable as against prior employers. The
requirements as to notice as to occupational disease and death resulting
therefrom shall be the same as required in section eighteen of this
chapter, except that the notice shall be given to the employer within
two years after the disablement or after the claimant knew or should
have known that the disease is due to the nature of the employment,
whichever is the later date.
Information; penalty. The employee or his dependents, if so
requested, shall furnish the last employer or the board with such
information as to the names and addresses of all his other employers
during the said twelve months, as he or they may possess; and if such
information is not furnished, or is not sufficient to enable such last
employer to take proceedings against a prior employer under section
forty-four, unless it be established that the disease actually was
contracted while the employee was in his employment, such last employer
shall not be liable to pay compensation, or, if such information is not
furnished or is not sufficient to enable such last employer to take
proceedings against other employers under section forty-four, such last
employer shall be liable only for such part of the total compensation as
under the particular circumstances the board may deem just; but a false
statement in the information furnished as aforesaid shall not impair the
workman's rights unless the last employer is prejudiced thereby.
Presumption as to the cause of disease. If the employee, at or
immediately before the date of disablement, was employed in any process
mentioned in the second column of the schedule of diseases in
subdivision two of section three of this chapter, and his or her disease
is the disease in the first column of such schedule set opposite the
description of the process, the disease presumptively shall be deemed to
have been due to the nature of that employment. Any exposure to the
hazards of compressed air after July first, nineteen hundred forty-six
shall be presumed, in the absence of substantial evidence to the
contrary, to be injurious exposure. Any exposure to the hazards of
harmful dust in this state for a period of sixty days after September
first, nineteen hundred thirty-five, shall be presumed, in the absence
of substantial evidence to the contrary, to be an injurious exposure.
With respect to any state or local correction officer as defined in
subdivision twenty-five of section 2.10 of the criminal procedure law,
safety and security officer employed by the office of mental health,
security hospital treatment assistant employed by the office of mental
health, any uniformed court officer or court clerk of the unified court
system having the powers of peace officer, the court reporter or the
court interpreter, an exposure to the blood or bodily fluid of an
individual, incarcerated, confined or otherwise, during the course of
his or her employment that is reported in writing to such correction
officer's, safety and security officer's, security hospital treatment
assistant's, uniformed court officer's, court clerk's, court reporter's
or court interpreter's employer within twenty-four hours of such
exposure, shall be presumed, in the absence of substantial evidence to
the contrary, to be an injurious exposure if, subsequent to such
exposure, such correction officer, safety and security officer, security
hospital treatment assistant, uniformed court officer, court clerk,
court reporter or court interpreter is diagnosed with a blood-borne
disease, including, but not limited to hepatitis C.
Diseases which are accidents. Nothing in this article shall
affect the rights of an employee to recover compensation in respect to a
disease to which this article does not apply if the disease is an
accidental personal injury within the meaning of subdivision seven of
section two of this chapter.
ARTICLE 3-A Occupational Loss of Hearing
Declaration of purpose. The compensability of claims for loss
of hearing resulting from exposure to industrial noise has created a
problem in this state which is a matter of grave concern to the
legislature. The legislature, therefore, finds and declares that the
public interest can best be served by providing that compensation for
occupational loss of hearing shall be paid only as provided in this
article and subject to the conditions and limitations hereinafter set
forth.
Waiting period; date of disablement; payment of compensation.
Notwithstanding any other inconsistent provisions of this chapter,
compensation for occupational loss of hearing shall become due and
payable at the employee's choice three months after (1) removal from
exposure to harmful noise in employment (removal from exposure to
harmful noise in employment for the three month waiting period may be
achieved by use of effective ear protection devices provided at the
expense of the employer) or (2) separation from work for the last
employer in whose employment the employee was at anytime during such
employment exposed to harmful noise. The last day of such period of
removal from such exposure or of separation from such work shall be the
date of disablement. Such disablement shall be treated as the happening
of an accident within the meaning of this chapter and the procedure and
practice provided in the chapter shall apply to all proceedings as set
forth in this article except where specifically otherwise provided
herein. A claim for loss of hearing under this article shall not be
barred by the failure of the employee or the employee's dependents to
file a claim within the two year period prescribed by section
twenty-eight of this chapter, provided such claim shall be filed after
such two year period within ninety days after knowledge that the loss of
hearing is or was due to the nature of the employment. An employee whose
disablement and knowledge of disablement occurred prior to October
first, nineteen hundred eighty shall have six months from such date to
file a claim. The former average wage on which the compensation rate
payable shall be based shall be determined, as provided in sections
fourteen and fourteen-a of this chapter, by the wages earned by the
employee during the year prior to the employee's last day of work in the
last employment in which the employee was exposed to harmful noise.
Right to compensation. If an employee becomes disabled from
occupational loss of hearing he shall be entitled to compensation in
accordance with the provisions of subdivision three of section fifteen
of this chapter. No employee shall in the aggregate receive greater
compensation from any or all employers than that provided in subdivision
three of section fifteen for total loss of hearing. Notwithstanding the
provisions of paragraph c of subdivision four of section twenty-five of
this chapter awards for occupational loss of hearing shall be paid in
addition to, and shall not be deducted from, benefits payable to an
employee under any welfare plan, pension plan, agreement or trust to
which such employee is a party or of which he is a beneficiary.
Posthumous schedule awards. If an employee shall die before
he shall have been removed from exposure to harmful noise for a period
of at least three consecutive months as hereinbefore provided, an award
may be made payable in accordance with the provisions of subdivision
four of section fifteen of this chapter and such award shall not be
barred by the fact that the deceased shall not have been removed from
harmful noise for a period of at least three consecutive months. In such
case the extent and degree of the employee's occupational loss of
hearing, and the award, if any, to be paid for such loss under
subdivision three of section fifteen of this chapter, shall be
determined upon the submission of proper proof of the occupational loss
of hearing sustained by the deceased employee. The date of disablement
shall be the date of the employee's death.
Liability of employer; preplacement examinations and notice
to prior employers; apportionment of liability between employers. 1. The
last employer in whose employment the employee was exposed to harmful
noise shall, except as herein provided, be liable for the payment of the
total compensation due the employee for his loss of hearing caused by
all of his employments in which he was exposed to harmful noise and the
employee shall not be required to give notice to, or to file any claim
against, any of his prior employers in whose employment he was exposed
to harmful noise.
2. If an employer makes a pre-placement examination which shows that
the employee has a pre-existing loss of hearing which may be due to a
prior employment or employments in which he was exposed to harmful
noise, such employer shall promptly, and in any event within ninety days
after such preplacement examination, give notice to the prior employer
or employers in writing of the result of such pre-placement examination.
Such notice shall advise the prior employer or employers that they may
be required, if a claim is filed and an award to the employee is
subsequently made, to reimburse the succeeding employer for that portion
of the award which was due to the loss caused by their prior employment,
provided, however, that no liability shall attach to any prior employer
in whose employment the last preceding harmful exposure shall have
occurred more than three years prior to the date of mailing such notice
to the prior employer or employers, and provided further that in no
event shall any employer, including the last employer, be liable for the
payment of any claim that would otherwise, and regardless of the date of
disablement fixed herein, be barred by any of the limitations contained
in sections twenty-eight and forty of this chapter. A copy of this
notice shall also be sent to the employee. Upon receipt of such notice
the prior employer or employers shall have the right to a competent
examination as to the nature and extent of the employee's loss of
hearing, and such examination shall not be invalid because the employee
has not been removed from harmful exposure for a period of at least
three consecutive months.
3. All issues as to the nature and extent of the employee's ultimate
loss of hearing due to his occupation, the total amount of compensation,
if any, due the employee, the liability for contribution, if any, of the
prior employer or employers who were given notice by the last employer
as hereinbefore provided, the amount of the contribution, if any, to be
paid by such prior employer or employers, and the liability, if any, of
the last employer and the amount of compensation, if any, to be paid by
such last employer, shall be determined only after the employee shall
have been removed from harmful exposure for a period of at least three
consecutive months, whether working for one or more employers, and after
his disablement as set forth in section forty-nine-bb of this article.
If, upon the filing of any claim, the last employer decides to
controvert the right to compensation upon any ground he shall file a
notice of controversy with the chairman as provided in section
twenty-five of this chapter. If, upon the filing of any claim, any prior
employer who was given notice as hereinbefore provided decides to
controvert the liability for contribution he shall promptly inform the
last employer and the workers' compensation board in writing so that
such issue may be determined together with, and at the same time as, the
employee's claim for compensation against the last employer. If the last
employer in whose employment there was an exposure to harmful noise does
not give the employee a replacement examination, or does not give notice
as provided herein to the prior employer or employers, then such last
employer, except as herein provided, shall be liable for the employee's
entire occupational loss of hearing without the right to reimbursement
from the prior employer or employers.
Minimum exposure required. No employee or his dependents,
shall, in the absence of substantial evidence to the contrary, be
entitled to an award for occupational loss of hearing unless the
employee shall have been employed in an employment in which he was
exposed to harmful noise for a period of at least ninety days in this
state.
Determination of damage risk criteria and standards for the
measurement of occupational loss of hearing. The chairman of the
workers' compensation board is authorized and empowered to, and shall,
appoint and consult with a committee or committees of not less than
three nor more than nine outstanding expert consultants familiar with
the various aspects of the problem of industrial noise and occupational
loss of hearing for the purpose of developing their recommendations as
to the most reliable and acceptable damage risk criteria and standards
for the measurement and determination of occupational loss of hearing.
Such recommendations shall include but shall not be limited to the
subjects of (a) what industrial noise levels may cause occupational loss
of hearing, (b) frequencies to be used in measuring industrial hearing
loss, (c) the point below which there is no hearing disability and the
point above which the inability to hear shall be deemed total, (d) the
use of a monaural or binaural method of computing the percentage loss of
hearing, (e) proper deductions for presbycusis and other non-industrial
causes of deafness and being hard of hearing, and (f) the number of
examinations needed to evaluate industrial hearing loss and the fairest
method of determining the loss from the results of successive
examinations. The committee or committees of expert consultants so
appointed by the chairman shall meet and confer with representatives of
the workers' compensation board and with representatives of employers
and employees, and shall thereafter report their findings and
recommendations to the workers' compensation board. The workers'
compensation board, after giving due consideration to such findings and
recommendations, is authorized to adopt reasonable rules, not
inconsistent with the provisions of this chapter including without
limitation section forty-nine-hh of this article, and the labor law,
prescribing damage risk criteria and standards for the measurement and
determination of occupational loss of hearing. Pending the formulation
and adoption by the workers' compensation board of such rules, claims
for occupational loss of hearing shall be determined upon the basis of
the tentative standards and criteria contained in the report, dated
December, nineteen hundred fifty-three of the committee appointed by the
workers' compensation board and entitled "Report of the Committee of
Consultants on Occupational Loss of Hearing."
Standards. Any standards for the measurement and
determination of occupational hearing loss adopted by the board pursuant
to section forty-nine-gg of this article shall conform with the
standards recommended by the American Academy of Otolarnyngology
accepted by the American Medical Association.
ARTICLE 4 Security For Compensation
Security for payment of compensation. An employer shall secure
compensation to his employees in one or more of the following ways:
1. By insuring and keeping insured the payment of such compensation in
the state fund, or
2. By insuring and keeping insured the payment of such compensation
with any stock corporation, mutual corporation or reciprocal insurer
authorized to transact the business of workers' compensation insurance
in this state through a policy issued under the law of this state.
3. By furnishing satisfactory proof to the chair of his financial
ability to pay such compensation for himself, or to pay such
compensation on behalf of a group of employers in accordance with
subdivision ten of this section, in which case the chair shall require
the deposit with the chair of such securities as the chair may deem
necessary of the kind prescribed in subdivisions one, two, three, four
and five, and subparagraph (a) of paragraph three of subdivision seven
of section two hundred thirty-five of the banking law, or the deposit of
cash, or the filing of irrevocable letters of credit issued by a
qualified banking institution as defined by rules promulgated by the
chair or the filing of a bond of a surety company authorized to transact
business in this state, in an amount to be determined by the chair, or
the posting and filing as aforesaid of a combination of such securities,
cash, irrevocable letters of credit and surety bond in an amount to be
determined by the chair, to secure his liability to pay the compensation
provided in this chapter. Any such surety bond must be approved as to
form by the chair. If an employer or group of employers posts and files
a combination of securities, cash, irrevocable letters of credit and
surety bond as aforesaid, and if it becomes necessary to use the same to
pay the compensation provided in this chapter, the chair shall first use
such securities or cash or irrevocable letters of credit and, when the
full amount thereof has been exhausted, he shall then require the surety
to pay forthwith to the chair all or any part of the penal sum of the
bond for that purpose. The chair may also require an agreement on the
part of the employer or group of employers to pay any awards commuted
under section twenty-seven of this chapter, into the special fund of the
state fund, as a condition of his being allowed to remain uninsured
pursuant to this section. The chair shall have the authority to deny the
application of an employer or group of employers to pay such
compensation for himself or to revoke his consent furnished, under this
section at any time, for good cause shown. The employer or group of
employers qualifying under this subdivision shall be known as a
self-insurer.
If for any reason the status of an employer or group of employers
under this subdivision is terminated, the securities or the surety bond,
or the securities, cash, or irrevocable letters of credit and surety
bond, on deposit referred to herein shall remain in the custody of the
chair for such time as the chair may deem proper and warranted under the
circumstances. In lieu thereof, and at the discretion of the chair, the
employer, his or her heirs or assigns or others carrying on or
liquidating such business, may execute an assumption of workers'
compensation liability insurance policy as described herein. Separately,
the chair may execute an assumption of workers' compensation liability
insurance policy as described herein on behalf of the special funds
created under the provisions of subdivisions eight and nine of section
fifteen and section twenty-five-a of this chapter, and notwithstanding
any provision to the contrary the chair may execute an assumption of
workers' compensation liability insurance policy on behalf of the
uninsured employers' fund. An assumption of workers' compensation
liability policy referred to herein shall secure such further and future
contingent liability as may directly or indirectly arise from prior
injuries to workers and be incurred by reason of any change in condition
of such workers warranting the board making subsequent awards for
payment of additional compensation. Such policy shall be in a form
approved by the superintendent of financial services and issued by the
state fund or any insurance company licensed to issue this class of
insurance in this state or, upon application by the chair, any other
insurance company deemed by the superintendent of financial services to
be an acceptable issuer. In the event that such policy is issued by an
insurance company other than the state fund, then said policy shall be
deemed of the kind specified in paragraph fifteen of subsection (a) of
section one thousand one hundred thirteen of the insurance law and
covered by the workers' compensation security fund as created and
governed by article six-A of this chapter. It shall only be issued for a
single complete premium payment in advance and in an amount deemed
acceptable by the chair and the superintendent of financial services. In
lieu of the applicable premium charge ordinarily required to be imposed
by a carrier, said premium shall include a surcharge in an amount to be
determined by the chair to: (i) satisfy all assessment liability due and
owing to the board and/or the chair under this chapter; and (ii) satisfy
all future assessment liability under this section, and which surcharge
shall be adjusted from time to time to reflect any changes to the
assessment of group self-insured employers, including any changes
enacted by the chapter of the laws of two thousand eleven amending
sections fifteen and one hundred fifty-one of this chapter. Said
surcharge shall be payable to the board simultaneous to the execution of
the assumption of workers' compensation liability insurance policy.
However, the payment of said surcharge does not relieve the carrier from
any other liability, including liability owed to the superintendent of
financial services pursuant to article six-A of this chapter. When
issued such policy shall be non-cancellable without recourse for any
cause during the continuance of the liability secured and so covered.
3-a. Group self-insurance. (1) Definitions. As used in this chapter
the term "employers" shall include: (a) employers with related activity
in a given industry which shall include municipal corporations as that
term is defined in sections two and six-n of the general municipal law,
employing persons who perform work in connection with the given
industry, (b) an incorporated or unincorporated association or
associations consisting exclusively of such employers provided they
employ persons who perform such related work in the given industry, and
(c) a combination of employers as described in subparagraph (a) hereof
and an association or associations of employers as described in
subparagraph (b) hereof.
(2) (a) Any group consisting exclusively of such employers may adopt a
plan for self-insurance, as a group, for the payment of compensation
under this chapter to their employees, except that no new groups may
adopt such a plan, and no group not composed solely of public entities
set forth in subparagraph (a-1) of this paragraph may insure any
liabilities for any employers on and after January first, two thousand
twelve, except as provided for in paragraph ten of this subdivision.
Under such plan the group shall assume the liability of all the
employers within the group and pay all compensation for which the said
employers are liable under this chapter, except that in the case of
public group self-insurers as defined in subparagraph (a-1) of this
paragraph no proof of financial ability or deposit of securities or cash
need be made in compliance with this subdivision. The group qualifying
under this subdivision shall be known as a group self-insurer and the
employers participating therein and covered thereby shall be known as
members.
(a-1) Any group consisting exclusively of public corporations as
defined in section sixty-six of the general construction law, county
self-insurance plans established under article five of this chapter,
boards of cooperative educational services and consortia established by
boards of cooperative educational services, and any other entity defined
as a public entity under paragraph fifty-one of subsection (a) of
section one hundred seven of the insurance law except the state of New
York, may adopt a plan for self-insurance, as a group, for the payment
of compensation under this chapter to their employees. Such a group
shall be known as a "public group self-insurer". A county self-insurance
plan established under article five of this chapter is not itself a
public group self-insurer and is not itself subject to the requirements
of this section, but may join a public group self-insurer and, if it
does so, shall assume all of the obligations of its participants to the
public group self-insurer. A public group self-insurer shall comply with
all of the requirements of this subdivision, including any obligations
imposed upon a group administrator, but is not required to secure the
services of a group administrator or obtain a license authorizing it to
act as a group self-insurer administrator, to furnish satisfactory proof
to the chair of its financial ability to pay compensation from its
revenues, their source and assurance of continuance, to pay a license
fee, or to deposit securities, post a bond or provide other security,
except as specifically provided in this subdivision.
(b) Where such plan is adopted the group self-insurer shall furnish
satisfactory proof to the chair of its financial ability to pay such
compensation for the members in the industry covered by it, its
revenues, their source and assurance of continuance. The chair shall
require the deposit with the chair of such securities as may be deemed
necessary of the kind prescribed in subdivisions one, two, three, four
and five, and subparagraph (a) of paragraph three of subdivision seven
of section two hundred thirty-five of the banking law or the deposit of
cash or the filing of irrevocable letters of credit issued by a
qualified banking institution as defined by rules promulgated by the
chair or the filing of a bond of a surety company authorized to transact
business in this state, in an amount to be determined to secure its
liability to pay the compensation of each employer as above provided.
Such surety bond must be approved as to form by the chair. The chair
shall require each group self-insurer to provide regular reports no less
than annually, which shall include but not be limited to audited
financial statements, actuarial opinions and payroll information
containing proof that it is fully funded. Such reports shall also
include a contribution year analysis detailing contributions and
expenses associated with each specific contribution year. For purposes
of this paragraph, proof that a group self-insurer is fully funded shall
at a minimum include proof of unrestricted cash and investments
permitted by regulation of the chair of at least one hundred percent of
the total liabilities, including the estimate presented in the actuarial
opinion submitted by the group self-insurer in accordance with this
chapter. The chair by regulation, may set further financial standards
for group self-insurers. Any group self-insurer that fails to show that
it is fully funded shall be deemed underfunded, and must submit a plan
for achieving fully funded status which may include a deficit assessment
on members of such group self-insurer which shall be subject to approval
or modification by the chair. The amount of such under-funding, as
measured by the actuarial opinion or assumption of loss policy quotation
submitted by the group, shall be considered unfunded claims as set forth
in subdivision two of section sixteen hundred eighty-q of the public
authorities law as added by section 35 of Part GG of chapter 57 of the
laws of 2013.
(c) The chair shall evaluate, no less than once every three years, a
group self-insurer's compliance with the financial and regulatory
requirements for self-insurance. The chair may engage any qualified
person or organization to assist with such evaluation and any costs
incurred by the chair shall be borne by the group self-insurer under
examination. Failure to submit to such independent review or to pay such
costs, upon demand of the chair, shall be sufficient grounds to
terminate coverage of the group self-insurer.
(d) The chair may require reports to be prepared by an auditor,
actuary or other consultant, selected by the board or, at the chair's
discretion, by the group self-insurer from a list which shall be
pre-approved by the chair to determine whether the group self-insurer
meets the financial criteria for self-insurance. All actuaries so
selected shall be fellows or associates of the casualty actuarial
society.
(e) The chair may also require that any and all agreements, contracts
and other pertinent documents relating to the organization of the
members in the group self-insurer shall be filed with the chair.
(f) The chair shall have the authority to revoke consent furnished
under this section at any time for good cause shown.
(g) Prior to the requested effective date of the participating
agreement, a group self-insurer shall notify the chair on a prescribed
form of a new group self-insurer member and file (1) a member
application and (2) a copy of the properly executed prescribed
participation agreement wherein the member acknowledges their joint and
several obligation for their period of membership. The board shall, on a
form promulgated by the chair, provide notice of the member's rights and
responsibilities as a group self-insurer member, including the member's
assumption of joint and several liability, and require the member to
return a signed copy to the chair as a condition of membership.
(h) Any member terminating membership in a group self-insurer after
less than four years in such group self-insurer, and any member in a
group self-insurer that has defaulted, shall be precluded from obtaining
prospective coverage from any group self-insurer for a period of at
least three years from the effective date of termination.
(3) A member's participation in a group self-insurer shall not relieve
it of its liability for compensation prescribed by this chapter except
by the payment thereof by the group self-insurer or by itself. Each
member shall be responsible, jointly and severally, for all liabilities
of the group self-insurer provided for by this chapter occurring during
its respective period of membership, and such liability shall attach to
any recipient of a conveyance of assets made in violation of subdivision
(a) of section two hundred seventy-four of the debtor and creditor law.
As between the employee and the group self-insurer, notice to or
knowledge of the occurrence of the injury on the part of the member
shall be deemed notice or knowledge, as the case may be, on the part of
the group self-insurer; jurisdiction of the member shall, for the
purpose of this chapter, be jurisdiction of the group self-insurer and
such group self-insurer shall in all things be bound by and subject to
the orders, findings, decisions or awards rendered against the
participating member for the payment of compensation under the
provisions of this chapter. The insolvency or bankruptcy of a
participating member shall not relieve the group self-insurer from the
payment of compensation for injuries or death sustained by an employee
during the time the member was a participant in such group self-insurer.
Notice of termination of a participating member shall not be effective
until at least ten days after notice of such termination, on a
prescribed form, has been either filed in the office of the chair or
sent by certified or registered letter, return receipt requested, and
also served in like manner upon the member. In the event such
termination is due to a member's failure to pay required contributions,
such member's termination shall not be rescinded more than three times.
(3-a) If the chair determines that a public group self-insurer has
become insolvent, the chair shall pay the compensation and benefits that
would otherwise have been required to be paid by the members of the
public group self-insurer from administration expenses as provided in
section one hundred fifty-one of this chapter upon audit and warrant of
the comptroller and upon vouchers approved by the chair, which payments
shall be considered expenses of administration. For purposes of this
paragraph, a public group self-insurer is insolvent when the value of
the public group self-insurer's assets is less than the total costs of
the workers' compensation liabilities that it is anticipated the public
group self-insurer will be required to pay within the succeeding six
months or that the compensation and benefits provided by this chapter
may be unpaid by reason of the default of a public group self-insurer.
Upon the insolvency of a public group self-insurer, each member shall
assume responsibility for the continued administration and payment of
all claims against it, provided however that the public group
self-insurer shall, within thirty days, turn its assets over to the
chair and the chair shall assume the administration and cost of the
claims of the public group self-insurer for a period not to exceed one
year. During the period of chair administration of claims, each member
of the public group self-insurer shall secure the services of a licensed
claims administrator and the chair shall segregate the claims
obligations of the insolvent public group self-insurer by member, and,
if necessary segregate an adequate claim reserve for any claims of
defunct or insolvent members of the insolvent public group self-insurer.
Not later than one year from the assumption of the administration of the
claims of the public group self-insurer, each member of the insolvent
public group self-insurer shall resume administration of its own claims
and the chair shall return to each member whatever pro rata share of the
public group self-insurer's assets remain after the period of chair
administration. The chair shall be reimbursed for any payment made under
this paragraph by the public group self-insurer itself and, if the
public group self-insurer is unable to reimburse the chair fully for
payments made by the chair, then by the member of the public group
self-insurer against which the claim is asserted. Further, nothing
herein shall preclude the chair from directing that an underfunded
public group self-insurer levy an assessment on its members as part of a
plan for achieving fully funded status which may include a deficit
assessment on members of such group self-insurer which shall be subject
to approval or modification by the chair. No member shall be liable for
any obligations of the public group self-insurer or any obligations of
any member of the public group self-insurer. The chair shall require any
member that has pending claims but has failed to secure the services of
a licensed claims administrator to resume administration of the claims
to pay to the chair any expenses the chair incurs in administering and
paying those claims.
(4) Each group self-insurer, in its application for self-insurance,
shall set forth the names and addresses of each of its officers,
directors, trustees, third party administrator and group administrator.
Notice of any change in the officers, directors, trustees, third party
administrator or group administrator shall be given to the chair within
ten days thereof. No officer, director, trustee, employee, third party
administrator or group administrator of the group self-insurer may
represent or participate directly or indirectly on behalf of an injured
worker or his dependents in any workers' compensation proceeding. All
employees of members participating in group self-insurance shall be and
are deemed to be included under the group self-insurance plan.
(5) (a) Each group self-insurer shall secure the services of a group
administrator to be responsible for assisting the group self-insurer in
complying with the provisions of this section and the rules and
regulations promulgated hereunder, and for coordinating services
including but not limited to claims processing, loss control, legal,
accounting and actuarial services. No person, firm or corporation shall
coordinate such services or otherwise carry out the tasks of a group
administrator as provided in this subdivision or in the regulations
issued pursuant thereto on behalf of a group self-insurer unless such
person shall have obtained from the chair a license authorizing it to
act as a group self-insurer administrator, which license may be revoked
for good cause. The chair shall promulgate regulations setting forth any
additional qualifications for such license, governing the conduct and
compensation of group self-insurer administrators, and setting a license
fee in an amount not less than five thousand dollars per year for such
license for each group self-insurer the administrator administers. Each
administrator shall post a bond in the amount of five hundred thousand
dollars for each group self-insurer administered or such other amount as
may be set by the chair based on the cost and availability of such bond,
from which the chair may recover any recoveries or penalties against the
administrator under this section. Nothing in this section shall relieve
the trustees of a group self-insurer of any fiduciary obligation they
hold to the other members of such group self-insurer.
(b) A group administrator that knowingly and with intent to mislead
makes a material misrepresentation of a material fact in soliciting
members in a group self-insurer shall be guilty of a class E felony.
Additionally, the chair may impose a civil penalty of up to ten thousand
dollars for each such violation.
(c) A group administrator, actuary or accountant that knowingly makes
a material misrepresentation of a material fact concerning the financial
status of any group self-insurer to the chair or board, or in its annual
report to members of the group self-insurer, shall be guilty of a class
E felony. The chair may impose a civil penalty of up to twenty thousand
dollars for each such violation. A second and subsequent violation of
this paragraph shall be a class D felony. The chair may recover in a
civil action any damages resulting from such misrepresentations,
including the value of any amount assessed against any entities that are
not members of the defaulted self-insurer that resulted from any such
misrepresentation.
(d) (1) A group administrator shall provide an annual written report
to all members of the group self-insurer and to the board which shall
include:
a. the members of the group self-insurer;
b. the group administrator and trustees;
c. the results of the most recent financial audit;
d. the percentage of total liabilities held by the self-insurer in
unrestricted cash and investments permitted by regulation as determined
in accordance with subparagraph (b) of paragraph two of this
subdivision;
e. the number and amount of rate deviations provided to members during
the prior year and whether the recipient of any such deviation was a
trustee; and
f. such other information as the chair may direct.
The group administrator shall provide a copy of the most recent
financial audit to any group self-insurer member upon written request.
(2) The chair shall make available to the public, on its website and
in writing upon request:
a. the identity of all group self-insurers that have provided workers'
compensation under this subdivision in the prior three years;
b. the group administrator of each such group self-insurer;
c. the financial condition of all group self-insurers as determined by
the board in the last financial audit and the board's regulatory
definition of assets; and
d. such other information as the chair may direct, but which shall not
include any confidential or proprietary information.
The board may direct the disclosure of any non-proprietary information
regarding any group self-insurer, including whether a member is a member
thereof, to any claimant upon a showing of need.
(e) (1) The chair may condition the issuance or continuation of a
license under this subdivision upon the presentation by a group
administrator of such information as the board requests, at any time
chosen by the chair or at regular intervals, including but not limited
to the annual financial statements of the group administrator detailing
the compensation the administrator and its substantially owned
affiliated entities, as defined in section two of this chapter, have
received or shall receive from the group self-insurer or its members,
and the method by which such compensation has been or will be
calculated. The chair may issue regulations governing the method of
calculating compensation which a group administrator may receive,
including restrictions on the process by which such compensation may be
set.
(2) The chair may revoke the license of any group administrator that
receives compensation in violation of such regulations, and may impose a
penalty of up to two times any compensation so received.
(f) (1) No officer or director of, or person holding five percent or
more ownership interest in, a group administrator shall within two years
of serving in such capacity or holding such ownership interest, serve in
any capacity or hold any ownership interest in a workers' compensation
carrier that provides or solicits the provision of compensation under
this title for any employer that is or was a member of such group
self-insurer. No officer or director of, or person holding five percent
or more ownership interest in a group administrator shall serve in such
capacity or hold such ownership interest in a carrier that provides or
solicits excess coverage for any group self-insurer administered by such
administrator.
(2) The chair may impose a civil penalty of up to ten thousand dollars
for each violation of this paragraph.
(g) Each group self-insurer shall submit to the chair copies of any
agreement or contract with an entity that serves or will serve as its
group administrator, accountant, actuary or third party administrator at
least thirty days prior to becoming effective, and the effectiveness of
such contract shall be conditioned on the absence of an objection by the
board during the thirty day period. Contracts that shall be subject to
such objection shall include any contract in violation of regulation;
and any contract that does not provide reasonable cancellation or
renewal terms, including any contract that requires an affirmative act
by the trustees of the group self-insurer to prevent automatic renewal,
or that does not permit cancellation for negligence, violation of law,
or other good cause.
(6) (a) Group self-insurers must file with the board, as soon as
practicable but no later than sixty days prior to the start of the fund
year a rating plan which is supported by an actuarial rate study
prepared by an independent, qualified actuary that is a fellow or
associate of the casualty actuarial society, that clearly identifies the
actuary's indicated rate assumptions therein. The rating plan must apply
consistently to all members, and must provide for a common renewal date
for all group self-insurer members. The rates filed can be adjusted
based on an experience modification calculated for every member in
accordance with the experience rating plan promulgated by the workers'
compensation rating board. Experience modification formulas must be
applied identically to all members. Other rate deviations may be
permissible provided a plan has been approved by the board. Such
deviations shall not be in excess of ten percent of the actuary's
indicated rate unless otherwise approved by the board for a fully funded
group self-insurer, and shall in no event result in amounts less than
the actuary's overall indicated rate. The chair by regulation may set
further rate plan and actuarial reporting standards.
(b) If the chair has cause to believe that a group self-insurer's
contribution rates including experience modifications do not conform to
the requirements of this part then he or she may require the submission
of a report identifying the contributions paid by each of the members
for the preceding year, the projected contributions for each group
self-insurer member for the current fiscal year, and the manner in which
such contributions were calculated. If, after review by the chair, the
group self-insurer's contribution rates are deemed to be detrimental to
its solvency, the chair may mandate that the group self-insurer modify
such rates as the chair directs. The chair may impose a penalty of up to
five thousand dollars for each violation of this subparagraph. A group
self-insurer's failure to adhere to the rating structure determined by
the board shall constitute good cause for termination.
(7) (a) If for any reason, the status of a group self-insurer under
this subdivision is terminated, including by operation of law on and
after January first, two thousand twelve, the securities or cash or the
surety bond on deposit referred to herein shall remain in the custody of
the chair for such time as the chair may deem proper and warranted. In
lieu thereof, and at the discretion of the chair, the group
self-insurer, its heirs or assigns or others carrying on or liquidating
such group self-insurer, including the chair on the group self-insurer's
behalf, may execute an assumption of workers' compensation liability
insurance policy securing such further and future contingent liability
as may arise from prior injuries to workers and be incurred by reason of
any change in the condition of such workers warranting the board making
subsequent awards for payment of additional compensation. Such policy
shall be in a form approved by the superintendent of financial services
and issued by the state fund or any insurance company licensed to issue
this class of insurance in this state. In the event that such policy is
issued by an insurance company other than the state fund, then said
policy shall be deemed of the kind specified in paragraph fifteen of
subsection (a) of section one thousand one hundred thirteen of the
insurance law and covered by the workers' compensation security fund as
created and governed by article six-A of this chapter. It shall only be
issued for a single complete premium payment in advance by the group
self-insurer and in an amount deemed acceptable by the chair and the
superintendent of financial services. In lieu of the applicable premium
charge ordinarily required to be imposed by a carrier, said premium
shall include a surcharge in an amount to be determined by the chair to:
(i) satisfy all assessment liability due and owing to the board and/or
the chair under this chapter; and (ii) satisfy all future assessment
liability under this section, and which surcharge shall be adjusted from
time to time to reflect any changes to the assessment of group
self-insured employers, including any changes enacted by the chapter of
the laws of two thousand eleven amending sections fifteen and one
hundred fifty-one of this chapter. Said surcharge shall be payable to
the board simultaneous to the execution of the assumption of workers'
compensation liability insurance policy. However, the payment of said
surcharge does not relieve the carrier from any other liability,
including liability owed to the superintendent of financial services
pursuant to article six-A of this chapter. When issued such policy shall
be noncancellable without recourse for any cause during the continuance
of the liability secured and so covered.
(b) The chair shall levy an interim assessment on the members of a
defaulted group self-insurer within one hundred twenty days of such
default or of the effective date of the chapter of the laws of two
thousand eight which amended this subdivision, whichever is later, and
against the members of any other terminated group self-insurer when
necessary, for such an amount as he or she determines to be necessary to
discharge all liabilities of the group self-insurer, including the
reasonable cost of liquidation such as claims administration costs,
actuarial and accounting services, and the value of future assessments
on members of such group self-insurer as they are known at the time of
the assessment. The chair may impose subsequent and further deficit
assessments, or return funds to members, to adjust the moneys collected
to reflect the time of participation, and percent of group self-insurer
liabilities for such time. The time limitations included in the first
sentence of this subparagraph do not apply to the imposition of any
subsequent and further deficit assessments that exceed the interim
assessment made by the chair against members of a defaulted group
insurer or members of any other terminated group self-insurer.
Notwithstanding any such action by the chair, each member of the group
self-insurer shall remain jointly and severally responsible for all
liabilities provided by this chapter including but not limited to
outstanding and estimated future liabilities and assessments. Further,
separate and apart from, and in addition to a member's joint and several
liability and notwithstanding any payments made by any other members of
the group self-insurer pursuant to this subparagraph, in the event that
a member neglects or fails to pay an assessment levied pursuant to this
subparagraph, the member shall be deemed in default in the payment of
compensation. Such defaulting member is subject to the enforcement
provisions of section twenty-six of this chapter for the payment of all
compensation relative to awards due and owing on claims filed by the
employees of such member that have neither been paid by the member or
the group self-insurer. Nothing in this paragraph shall prevent the
chair from offering payment plans or settling claims against members of
any group self-insurer as necessary to facilitate collection.
(c) Upon the assumption of the assets and liabilities of a group
self-insurer by the chair or his or her designee pursuant to regulation
of the chair, all records, documents and files of whatever nature,
pertaining to the group self-insurer, be they in the possession of the
group self-insurer or a third party, and all remaining assets of the
group self-insurer, shall become the property of the chair. All
custodians of such records and/or funds shall turn over to the chair or
his designee all such original records upon demand.
(8) All the provisions of this chapter relating to self-insurance and
the rules and regulations promulgated thereunder shall be deemed
applicable to group self-insurance. The chair shall implement the
provisions of this subdivision by promulgating rules and regulations but
no such rules or regulations shall be necessary for any provision of
this subdivision to be effective. The chair may impose a civil penalty
of up to ten thousand dollars for each violation against any group
self-insurer that violates any provision of this subdivision or of any
regulation issued pursuant thereto for which a civil penalty is not
specified.
(10) (a) A non-municipal group of employers may make application to
the chair to qualify jointly as a self-insurer, provided:
(1) The members of the group secure the services of an administrator,
who shall carry out the responsibilities of such an administrator as set
forth in subdivision five of this section, and who shall be subject to
the restrictions and penalties applicable to an administrator under this
section;
(2) The members of the group, through the administrator, (a) jointly
deposit sufficient securities in accordance with subdivision three of
this section or in a trust governed in accordance with Part 126 of title
11 of the New York code of rules and regulations to secure the liability
of the members of the group to pay for all existing claims obligations,
provided such deposit shall be made by November first, two thousand
eleven, (b) jointly deposit sufficient securities in accordance with
subdivision three of this section or in a trust governed in accordance
with Part 126 of title 11 of the New York code of rules and regulations
to secure all anticipated present and future claims of the members of
the group, by November first, two thousand fourteen, provided annual
deposits are made in accordance with a schedule set by the chair on or
before November first of each year, and provided that the deposit shall
be deemed an asset of the group for the purpose of determining its
funding status, and (c) by November first, two thousand eleven and
thereafter, shall maintain funds sufficient for all other liabilities
besides claims in a trust governed in accordance with Part 126 of title
11 of the New York code of rules and regulations, of which the board
shall be the sole beneficiary, and the terms of the trust agreement, and
the trustee, shall be approved by the chair in his or her sole
discretion, and provided that any group self-insurer that does not hold
such funds in a trust that meets the terms of this paragraph shall post
them with the board;
(3) The group has been authorized by the chair to self-insure in
accordance with this subdivision prior to the effective date of this
paragraph;
(4) The group's members or participant employers either (a) are
parties to collective bargaining agreements with the same unions; or (b)
fall within a limited number of payroll classifications, as set by the
chair, after giving due consideration to the risks associated with any
group of employers self-insuring. However, employers that were active
prior to the effective date of this section and whose classification
codes do not meet the limitations on payroll classification codes or are
not parties to collective bargaining agreements with the same unions
will be permitted to remain in the trust provided (a) they continue to
meet the other terms and conditions of the trust; and (b) any new
members shall be subject to the limitations on the number of payroll
classifications; and provided further, the chair shall revoke such
permission in the event the trust violates paragraph six of this
subdivision relating to filing of a rating plan;
(5) The group was fully funded for three out of the previous five
years and at least ninety percent funded for one other year out of the
previous five years, as determined by the chair following a financial
review, and the group self-insurer has sufficient funds to meet its
liabilities;
(6) The group has a safety program acceptable to the chair; and
(7) The group is subject to such other limitations and requirements of
this subdivision unless waived by the chair and to regulations of the
chair.
(b) The members of any such group shall enter into an agreement among
themselves and with the group's administrator which shall, at a minimum:
(1) Indicate that each of the members of the group is jointly and
severally liable for any liabilities of the group; and
(2) Provide for the collection of additional funds from group members
in the event the deposit with the board is insufficient to meet the
liabilities of the group.
(11) Former group self-insurer. Any group self-insurer that has ceased
to self-insure, or has ceased to self-insure any new liabilities after
January first, two thousand twelve in accordance with paragraph two of
this subdivision, shall remain subject to all the provisions of this
subdivision and the regulations issued pursuant thereto and any
assessments provided for by this section until such time as the group
self-insurer no longer possesses any liabilities.
(12) Any non-municipal group of employers authorized to self-insure
under paragraph ten of this section on or after January first, two
thousand twelve shall be deemed a "private self-insurer" for purposes of
the assessments set forth in sections fifteen and one hundred fifty-one
of this chapter.
3-b. (a) Except as provided in subdivision three-d of this section, no
person, firm or corporation, other than an attorney and
counsellor-at-law, shall solicit the business of representing, or engage
in representing self-insurers or group self-insurers, as defined in
subdivisions three and three-a of this section, before the board or any
officer, agent or employee of the board assigned to conduct any hearing,
investigation or inquiry relative to a claim for compensation or
benefits under this chapter, unless he or she shall be a citizen of the
United States or a noncitizen lawfully admitted for permanent residence
in the United States, or a corporation organized under the laws of the
state of New York, and shall have obtained from the board a license
authorizing him or her to appear in matters or proceedings before the
board. Such license shall be issued by the board in accordance with the
rules established by it. Any person, firm or corporation violating the
aforesaid provisions shall be guilty of a misdemeanor. The chair may
impose a civil penalty of up to one thousand dollars for each violation
against any representative licensed in accordance with this section that
violates any provision of this section or of any regulation issued
pursuant thereto, in addition to any other sanctions provided for under
this chapter.
(b) The board, in its rules, may provide for the issuance of licenses
to persons, firms or corporations, upon such proof of character and
fitness as it may deem necessary, without annual license fee, and for
the giving of a bond running to the people of the state of New York,
conditioned upon the faithful performance of all duties required of such
person, firm or corporation, and in an amount to be fixed by the board
in its rules. Such bond shall be approved by the board as to form and
sufficiency and shall be filed with it.
(c) There shall be maintained in each office of the board a registry
or list of all persons to whom licenses have been issued, as provided
herein, which list shall be corrected as often as licenses are issued or
revoked. Absence of record of the license issued, as herein provided,
shall be prima facie evidence that a person, firm or corporation is not
licensed to represent self-insurers.
(d) Any such license may be revoked by the board for cause after a
hearing before it.
(e) No license shall be issued hereunder for a period longer than
three years from the date of its issuance. The provisions of this
section shall not apply to a regular employee of a self-insured employer
or to the state insurance fund acting in accordance with an insuring
agreement with the state as authorized pursuant to the provisions of
section eighty-eight-c of this chapter.
3-c. Notwithstanding any provision in this chapter or in any general,
special or local law contained, all cash and securities deposited with
the chairman by an employer who is a party or a wholly owned subsidiary
of a party to a plan heretofore or hereafter adopted under article seven
of the public service law by the transit commission-- metropolitan
division of the department of public service, and who is, or at the time
of the consummation of such plan was, a self-insurer under this chapter,
may be withdrawn upon, or at any time after, the consummation of such
plan as hereinafter provided. All cash and securities deposited by any
such employer with and held by the chairman may be withdrawn upon, or at
any time after, the consummation of such plan where any city which is a
party thereto and which is a self-insurer under this chapter assumes all
liabilities of or claims against such employer under this chapter, as
follows: (a), where such plan provides that such city shall acquire, or
that such employer or his assigns shall retain, all the right and
interest of such employer in the deposited cash and securities, the
chairman shall surrender and deliver such cash and securities to such
city or to such employer or his assigns, as the case may be, upon its
demand, and (b), where such plan provides that such city and such
employer, or his assigns, shall each retain some right and interest in
such cash and securities, the chairman shall surrender and deliver such
cash and securities to such city and to such employer or his assigns
upon their joint demand as shall be specified therein.
3-d. The state insurance fund, an insurance company duly authorized or
licensed to write workers' compensation insurance in this state, a
subsidiary or an affiliate of such an insurance company, or a licensed
or authorized adjusting company or association may apply for a license
from the board to solicit the business of representing and engage in
representing self-insurers, as defined in subdivision three of this
section, before the board or any officer, agent or employee of the board
assigned to conduct any hearing, investigation or inquiry relative to a
claim for compensation or benefits under this chapter. Any corporation
formed solely for the purpose of engaging in the activities described by
this subdivision shall be formed under the laws of the state of New
York.
The state insurance fund, an insurance company, its subsidiary or
affiliate, or such adjusting company or association shall designate
those employees who are to appear in matters or proceedings before the
board on behalf of self-insurers. Such employees shall obtain an
authorization from the board. Upon application to the board for such
authorization all such employees who, on the effective date of this
subdivision, have been appearing in matters or proceedings before the
board on behalf of insurers for a period of at least two years shall
automatically receive a temporary authorization from the board. Such
temporary authorization shall remain in effect until the applicant
employee has been granted or denied final authorization by the board.
The board in its rules shall provide for the issuance of authorizations
to such employees and other designated employees. If the board, in its
rules, provides for the issuance of authorization to persons, firms or
corporations under subdivision three-b of this section upon such proof
of character and fitness as it may deem necessary, the same proof of
character and fitness shall be required for an authorization issued
under this subdivision.
The state insurance fund, an insurance company duly authorized or
licensed to write workers' compensation insurance in this state, a
subsidiary or an affiliate of such an insurance company, or a licensed
or authorized adjusting company or association shall apply to the board
for the issuance of a license upon such proof of character and fitness
as the board may deem necessary. Such proof of character and fitness
shall be the same as that required by the board of persons, firms or
corporations under subdivision three-b of this section. If the board
charges a fee for a license issued under subdivision three-b of this
section, the same amount shall be charged for a license issued under
this subdivision. If the board requires for the giving of a bond running
to the people of the state of New York, conditioned upon the faithful
performance of all duties required of such person, firm, or corporation
licensed under subdivision three-b of this section, the same shall be
required for a license under this subdivision. Such bond shall be
approved by the board as to form and sufficiency and shall be filed with
it. All license and authorization fees collected under the provisions of
this subdivision shall be paid into the state treasury. Any person,
insurance company, its subsidiary or affiliate, or adjusting company or
association which violates the aforesaid provisions of this paragraph
shall be guilty of a misdemeanor.
There shall be maintained in each office of the board a registry list
of all persons to whom authorizations and licenses have been issued as
provided herein, which list shall be corrected as often as
authorizations and licenses are issued or revoked. Absence of record of
the authorization or license issued, as herein provided, shall be prima
facie evidence that a person, firm or corporation is not authorized or
licensed to represent self-insurers. Any such authorization or license
may be revoked by the board for cause after a hearing before it. No
authorization or license shall be issued hereunder for a period longer
than three years from the date of its issuance.
The board shall make rules pertaining to when conflicts of interest
arise in individual cases which shall apply to those who are licensed or
authorized to represent self-insurers under subdivision three-b of this
section or under this subdivision.
The provisions of article twenty-four of the insurance law, insofar as
applicable, shall apply to the state insurance fund, insurance
companies, their subsidiaries and affiliates or adjusting companies or
associations in their activities representing self-insurers before the
board.
3-e. (a) The state insurance fund and any other insurer that issues
policies of workers' compensation insurance shall offer at the option of
the policyholder a deductible for benefits payable under a workers'
compensation policy with an annual premium of twelve thousand dollars or
more, if in the opinion of the state insurance fund or such other
insurer the policyholder meets the eligibility requirements of paragraph
(b) of this subdivision.
(b) A policyholder is eligible for a policy deductible for any renewal
period of the policy if such policyholder has paid the entire billed
premium on the policy for all policy periods within forty-five days of
each billing for the past three years. A policyholder will continue to
be eligible for a deductible provided that no part of any premium is
more than forty-five days overdue from the date billed or reimbursement
for any deductible amount is unpaid by the policyholder to such insurer.
The state insurance fund or any other insurer that has issued a policy
with a deductible may revoke the policyholder's entitlement to a
deductible if the policyholder fails to reimburse any deductible
amounts, or pay any billed premium, within forty-five days after such
reimbursement or premium payment has become due. Upon such revocation of
a policyholder's entitlement to a deductible, the policyholder shall be
entitled to cancel such policy and such policyholder will forfeit
eligibility for entitlement to a deductible as provided above.
(c) Deductibles shall be offered by the state insurance fund or any
other insurer in writing to eligible policyholders at the beginning of
policy periods, in the amounts of one hundred dollars, two hundred
dollars, three hundred dollars, four hundred dollars and five hundred
dollars, and thereafter, in increments of five hundred dollars up to a
maximum of two thousand five hundred dollars per occurrence. The
eligible policyholder shall select, in writing, only one deductible
amount which shall be binding on such policyholder throughout the policy
period.
(d) If the policyholder selects a deductible under paragraph (c) of
this subdivision, workers' compensation benefits payable under the
policy shall be paid by the state insurance fund or other insurer liable
under the policy to the person or provider entitled to such benefits
without regard to any deductible applied to such policy. Upon payment of
benefits on a claim up to or exceeding the deductible amount, the state
insurance fund or other insurer shall be entitled to bill the
policyholder for reimbursement up to the deductible amount. A
policyholder's failure to pay billed deductible reimbursement amounts to
the state insurance fund or other insurer under this paragraph shall be
treated in the same manner as non-payment of premium and render the
policy cancelable in accordance with the provisions of subdivision five
of section fifty-four of this article. The deductibles paid by the
insured employer during any one year period of the policy of insurance
shall not exceed the annual premium for such policy of insurance.
(e) Premium reductions, in accordance with methodology approved by the
superintendent of financial services shall be applied to any policy
written with a deductible. Such premium reductions shall be determined
before the application of any experience modification premium surcharge
or premium discount.
(f) The New York workers' compensation rating board shall file for
appropriate premium discounts subject to the approval of the
superintendent of financial services.
(g) The state insurance fund and any other insurer may, at its option,
offer a deductible in an amount specified in paragraph (c) of this
subdivision to any policyholder who is not otherwise eligible for a
deductible under this subdivision. A public group self-insurer may offer
a deductible in accordance with paragraph (h) of this subdivision.
(h) A public group self-insurer which has been providing workers'
compensation and employers' liability coverage for not less than five
years and is operated as a self-administered not-for-profit corporation
governed by a board not less than two-thirds of the members of which are
representatives of members of the public group self-insurer, and all of
the officers of which are representatives of members of the public group
self-insurer may, upon a determination by the chair that the methodology
used by the public group self-insurer in creating its deductible rating
plan is supported by an actuarial analysis prepared by an independent,
qualified actuary who is a member of the casualty actuarial society that
clearly identifies the actuary's rate assumptions, and subject to
underwriting by the public group self-insurer, offer as part of the
policy or by endorsement, deductibles optional to the member, not
subject to the foregoing monetary limits, consistent with the following:
(1) claimants' rights are properly protected, and claimants' benefits
are paid without regard to any such deductible;
(2) appropriate premium reductions reflect the type and level of any
deductible approved by the chair and selected by the member;
(3) premium reductions for deductibles are determined before
application of any experience modification, premium surcharge, or
premium discount;
(4) recognition is given to member's characteristics, including size,
financial capabilities, nature of activities, and number of employees;
(5) if the member selects a deductible, the member is liable to the
public group self-insurer for the deductible amount in regard to
benefits paid for compensable claims;
(6) the public group self-insurer pays all of the deductible amount,
applicable to a compensable claim, to the person or provider entitled to
benefits and then seeks reimbursement from the member for the applicable
deductible amount;
(7) a failure by the member to reimburse deductible amounts to the
public group self-insurer is treated in the same manner as nonpayment of
the member's contribution;
(8) the public group self-insurer shall be fully-funded as defined in
subparagraph (b) of paragraph two of subdivision three-a of this section
and if, after offering deductible policies, the public group
self-insurer ceases to be fully funded as so defined, the public group
self-insurer may not permit any new member to elect the deductible
option until the public group self-insurer becomes fully funded;
(9) the public group self-insurer may add no more than seven new
deductible members in any one contribution year;
(10) the aggregate contributions for all new members selecting the
deductible option in any one year may not exceed ten percent of the
total contributions of all of the public group self-insurer's members
for the immediately prior year;
(11) if the member was self-insured prior to joining the public group
self-insurer, the member's deductible amount during the member's first
year of membership in the public group self-insurer may not exceed the
amount of the member's reinsurance retention level immediately before
joining the public group self-insurer;
(12) each member which has elected the deductible option shall: (i)
maintain in a dedicated account held by the public group self-insurer an
amount actuarially determined to be sufficient to pay the portion of
each compensation claim that is within the deductible amount for the
succeeding three months; and (ii) maintain in its own dedicated reserve
account or in its own undesignated fund balance, the
actuarially-determined amount that the member will be required to pay
for all of the member's claims below the deductible amount; and
(13) the public group self-insurer shall provide to all members of the
public group self-insurer an annual statement identifying the
contributions provided by and the reserves attributable to the members
which have elected a deductible and must provide to each member of the
public group self-insurer which has elected the deductible option an
annual actuarial analysis of the member's open claims, stating the
amounts the public group self-insurer anticipates that the member will
be required to pay for the life of each claim.
4. a. A county, city, village, town, school district, fire district or
other political subdivision of the state may secure compensation to its
employees in accordance with subdivision one, two or three-a of this
section, and a public corporation as defined in subdivision one of
section sixty of this chapter may also secure such compensation in
accordance with article five of this chapter. If compensation is not so
secured, a county, city, village, town, school district, fire district
or other political subdivision shall be deemed to have elected to secure
compensation pursuant to subdivision three of this section and, in such
case, no proof of financial ability or deposit of securities or cash
need be made in compliance with such subdivision. All other requirements
prescribed by this chapter for employers so electing shall be complied
with and notice of such election shall be filed with the chair. For
failure to file such notice of election, prescribed in form by the
chair, within ten days after the election was made, the treasurer or
other financial officer shall be liable to pay to the chair the sum of
one hundred dollars as a penalty, to be transferred to the state
treasury.
b. The treasurer or other fiscal officer of a self-insuring county,
city, village, town, school district, fire district or other political
subdivision shall, upon presentation of an award of compensation
forthwith begin payment of it to the person entitled thereto in
accordance with this chapter.
c. The governing board of a county, city, village, town, school
district, fire district or other political subdivision may authorize the
treasurer or other fiscal officer of such municipal corporation,
district or political subdivision, as the case may be, to pay the
compensation provided for in this chapter to the person entitled thereto
without waiting for an award in any case in the manner provided in
section twenty-five of this chapter. The amount of such compensation
payable prior to an award pursuant to such authorization shall
constitute a settled claim within the meaning of the local finance law.
d. A contract of insurance issued to a county or a town in accordance
with subdivision one or two of this section and in force on or after the
first day of March, nineteen hundred sixty-three, in relation to fire
districts and on or after the first day of January, in the year in which
this paragraph as hereby amended becomes effective in relation to
ambulance districts shall contain a provision reading as follows: "This
contract does not provide (1) any coverage under the Workers'
Compensation Law or the Volunteer Firefighters' Benefit Law or the
Volunteer Ambulance Workers' Benefit Law for which any fire district or
ambulance district would be liable under such laws, (2) any workers'
compensation benefits for fire or ambulance district officers and
employees for which any fire district or ambulance district would be
liable under the Workers' Compensation Law, or (3) any volunteer
firefighters' or ambulance workers' benefits for any volunteer
firefighters or volunteer ambulance workers under the Volunteer
Firefighters' Benefit Law or the Volunteer Ambulance Workers' Benefit
Law".
e. If for any reason the status of a county, city, village, town,
school district, fire district or other political subdivision of state
is terminated, at the discretion of the chair, the county, city,
village, town, school district, fire district or other political
subdivision of state, may execute an assumption of workers' compensation
liability insurance policy securing such further and future contingent
liability as may arise from prior injuries to workers and be incurred by
reason of any change in the condition of such workers warranting the
board making subsequent awards for payment of additional compensation.
Such policy shall be in a form approved by the superintendent of
financial services and shall be issued by the state fund or any
insurance company licensed to issue this class of policy in this state.
In the event that such policy is issued by an insurance company other
than the state fund, then said policy shall be deemed to be insurance of
the kind specified in paragraph fifteen of subsection (a) of section one
thousand one hundred thirteen of the insurance law and covered by the
workers' compensation security fund as created and governed by article
six-A of this chapter. It shall only be issued for a single complete
premium payment in advance by the county, city, village, town, school
district, fire district or other political subdivision of state and in
an amount deemed acceptable by the chair and the superintendent of
financial services. In lieu of the applicable premium charge ordinarily
required to be imposed by a carrier, said premium shall include a
surcharge in an amount to be determined by the chair to satisfy all
assessment liability due and owing to the board and/or the chair under
this chapter. Said surcharge shall be payable to the board simultaneous
to the execution of the assumption of workers' compensation liability
insurance policy. However, the payment of said surcharge does not
relieve the carrier from any other liability, including liability owed
to the superintendent of financial services pursuant to article six-A of
this chapter. When issued such policy shall be non-cancellable without
recourse for any cause during the continuance of the liability secured
and so covered.
5. Self-insurance. "Self-insurance," as used herein, shall be deemed
to be the system of securing compensation as provided in subdivisions
three, three-a and four of this section, and article five of this
chapter.
a. The chair shall administer all matters relating to self-insurance
under this chapter. All penalties set forth in subdivisions three and
three-a of this section shall be paid into the fund for uninsured
employers provided for in section twenty-six-a of this chapter.
b. Advisory committee for individual self-insurance. (1) To advise the
chair, there shall be an advisory committee for individual
self-insurance, which shall be called the advisory committee for
self-insurance and consist of the chair and ten additional members
appointed by the chair. Three of such members shall be named from the
manufacturing and trade group of self-insurance, three from the
transportation, public utilities and construction group, and one member
shall be a self-insurer selected at large by the chairman, who shall be
vice-chairman of the advisory committee. The chair shall be chair of the
advisory committee; the secretary of the board shall act as secretary of
the advisory committee. Any member appointed to such advisory committee
shall be a self-insurer or an officer of a self-insurer or a person who
on account of his or her employment or affiliation can be classed as a
management representative of a self-insurer. The members of the advisory
committee for self-insurance in office at the time this subdivision
takes effect, shall be and they are hereby continued in office as such
for the remainder of the terms for which they were appointed
respectively.
The members of the advisory committee for self-insurance next
appointed, except to fill a vacancy created otherwise than by expiration
of term, shall be appointed for terms of three years, except that of the
three additional members to be appointed after May first, two thousand
eight, one such member shall be appointed for an initial term of one
year, one such member shall be appointed for an initial term of two
years, and one such member shall be appointed for an initial term of
three years. No member shall be appointed to the advisory committee for
individual self-insurance if he or she has been convicted of a crime
under this chapter or has been subject to criminal or civil penalties
under this subdivision. Vacancies shall be filled for the unexpired term
by appointment by the chair. Members shall continue in office until
their successors are appointed; in the event that no appointment is made
within three months after a vacancy exists or after the expiration of
the term of a member, the remaining members may fill the vacancy by a
majority vote. If a member shall be absent from two consecutive regular
meetings without adequate excuse his or her place may be declared vacant
by the chair. Members of such advisory committee shall serve without
pay, but shall be entitled to their reasonable and necessary traveling
and other expenses incurred in connection with their duties. Regular
meetings of the advisory committee shall be held twice a year, on dates
to be fixed by the chair. In addition, special meetings shall be held if
called by the chair or any five members of the committee. Such advisory
committee shall have access to all self-insurance records except those
restricted by the chair or those whose disclosure is restricted under
section one hundred ten-a of this chapter, and shall have the power to
require the presence before it of any employee of the board or any
self-insurer as reasonable and related to matters within the purview of
the committee. Information obtained by members of the advisory committee
shall be deemed confidential unless disclosed by order of the committee.
It shall be the duty of the advisory committee to advise the chair on
all matters relating to self-insurance, particularly in respect to rules
governing self-insurance, the deposit or withdrawal of securities, the
standards for permitting employers to self-insure under this section,
the appropriate amount of security or payments that self-insured
employers must provide, and on such other matters as the chair shall
request. The chair shall detail to such advisory committee such
stenographic or other assistance as may be necessary. Minutes shall be
kept of the meetings of the advisory committee and shall be provided
within forty-five days of such meeting to the governor and legislature,
including the chairs of the assembly and senate committees on insurance
and labor.
c. (1) The chair and the department of audit and control as soon as
practicable after May first, nineteen hundred sixty, and annually
thereafter, as soon as practicable after April first in each succeeding
year, shall ascertain the total amount of net expenses, including (a)
administrative expenses, which shall include the direct costs of
personal services, the cost of maintenance and operation, the cost of
retirement contributions made and workers' compensation premiums paid by
the State for or on account of personnel, rentals for space occupied in
state owned or state leased buildings, and (b) all direct or indirect
costs incurred by the board during the preceding fiscal year in carrying
out the provisions of subdivision three and three-a of this section.
Such expenses shall be adjusted annually to reflect any change in
circumstances, and shall be assessed against all private self-insured
employers, including for this purpose active and terminated group
self-insurers, active individual self-insured employers, and individual
self-insured employers who have ceased to exercise the privilege of
self-insurance.
(2) Such expenses shall be assessed against all self-insurers
including for this purpose employers who have ceased to exercise the
privilege of self-insurance. The basis of apportionment of the
assessment against each self-insurer shall be a sum equal to that
proportion of the amount which the indemnity payment for each
self-insurer bore to the total indemnity payments for all self-insurers
for the calendar year which ended within the preceding state fiscal
year. All such assessments when collected shall be deposited into a fund
which shall be used to reimburse the appropriations theretofore made by
the state for the payment of the expenses of administering this chapter.
(3) Pure premium for assessments made prior to January first, two
thousand nine against individual and group self-insurers who ceased to
self-insure shall be based on payroll at the time the individual or
group self-insurer has ceased to self-insure, reduced by a factor
reflecting the reduction in the group or individual self-insurer's
self-insurance liabilities since ceasing to self-insure.
d. The chair may from time to time request the superintendent of
financial services for assistance, and the superintendent of financial
services is hereby authorized to render such assistance upon request of
the chair, as may be necessary to insure the financial ability of such
group self-insurers to pay all liabilities provided by this chapter.
e. Notwithstanding the provisions of paragraph c of this subdivision,
the chair shall require that partial payments for expenses of the fiscal
year beginning April first, nineteen hundred eighty-three, and for each
fiscal year thereafter shall be made on March tenth of the preceding
fiscal year and on June tenth, September tenth, and December tenth of
each year, or on such other dates as the director of the budget may
prescribe, by each self-insurer. Provided, however, that the payment due
March tenth, nineteen hundred eighty-three for the fiscal year beginning
April first, nineteen hundred eighty-three shall not be required to be
paid until June tenth, nineteen hundred eighty-three. Each such payment
shall be a sum equal to twenty-five per centum of the annual expenses
assessed upon each self-insurer, as estimated by the chair. The balance
of assessments for the fiscal year beginning April first, nineteen
hundred seventy-three and each fiscal year thereafter, shall be paid
upon determination of the actual amount due in accordance with the
provisions of paragraph c of this subdivision. Any overpayment of annual
assessments resulting from the requirements of this paragraph shall be
refunded or at the option of the chair shall be applied as a credit
against the assessment of the succeeding fiscal year. The requirements
of this subdivision shall not apply to those self-insurers whose
estimated annual assessment for the fiscal year is less than one hundred
dollars and such self-insurers shall make a single payment of the
estimated annual assessment on or before September thirtieth of the
fiscal year.
f. Whenever the chair shall determine that the compensation and
benefits provided by this chapter may be unpaid by reason of the default
of an insolvent private self-insured employer, including a private group
self-insurer, the chair shall pay such compensation and benefits from
administration expenses as provided in section one hundred fifty-one of
this chapter upon audit and warrant of the comptroller upon vouchers
approved by the chair. Such payments shall be considered expenses of
administration. The chair shall be reimbursed therefor from the surety
bond, cash or securities held or, if such surety bond, securities or
cash is insufficient, by the employer, its receiver, liquidator,
rehabilitator or trustee in bankruptcy. All moneys reimbursed to the
chair or recovered by the chair in an action or proceeding to secure
such reimbursement shall forthwith be applied as a credit against the
expenses on which the assessment levied upon all private self-insured
employers, in accordance with paragraphs c and e of this subdivision, is
calculated.
g. Whenever the chair shall determine that the compensation and
benefits provided by this chapter may be unpaid by reason of the default
of an insolvent private self-insured employer, including a private group
self-insurer, the chair shall levy an assessment against all private
self-insured employers, including private group self-insurers, in
accordance with paragraphs c and e of this subdivision to assure prompt
payment of such compensation and benefits. Whenever compensation and
benefits are unpaid by reason of such default, the chair shall promptly
pay such compensation and benefits from administration expenses as
provided in section one hundred fifty-one of this chapter upon audit and
warrant of the comptroller upon vouchers approved by the chair. Nothing
in this paragraph shall preclude the chair from recovering the moneys it
expends from its administrative expenses against the defaulted
individual self-insurer, or the members of the defaulted group
self-insurer, as otherwise permitted by this chapter.
6. Any policy of insurance purchased pursuant to the provisions of
this subdivision six as in effect prior to the first day of March,
nineteen hundred fifty-seven, shall be cancelled prior to, or as of, the
twenty-eighth day of February, nineteen hundred fifty-seven.
The cost of such insurance shall be apportioned by the clerk of the
board of supervisors of the county to each such city, village, fire
district, fire protection district, fire alarm district, and territory
outside such municipal corporations and districts, in the proportion
that the agreed population bears to the entire population of the group.
Refunds, dividends and discounts in relation to such insurance shall be
distributed or credited according to the same apportionment. Upon
notification by the clerk of the board of supervisors, the chief fiscal
officer of each such city, village or fire district shall pay to the
county treasurer, from moneys available or made available, the amount
apportioned to such city, village or district. Upon like notification,
the supervisor of each town in which a fire protection district or fire
alarm district is located in whole or in part, or in which outside
territory is located, shall pay to the county treasurer the amount
apportioned for such district, in whole or in part, or territory, as the
case may be, using moneys raised or made available for the purposes of
fire protection in such district or outside territory, or if there be no
such moneys or insufficient moneys, using funds of the town available or
made available, which funds shall be a charge upon such district or
territory for which the town shall be reimbursed. The county treasurer
shall pay the cost of such insurance with such moneys, or if any
apportioned share has not been paid, the county treasurer shall advance
the amount necessary from moneys of the general fund upon resolution of
the board of supervisors. Any such advance shall be repaid as soon as
moneys are available therefor. If any apportioned share remains unpaid,
the county may recover the same by action at law. If any member of the
group shall fail to pay its apportioned share within thirty days after
notice that such amount has become due and payable, the chairman of the
board of supervisors may terminate the participation of such member in
the group by notice by mail to such member on a date specified in the
notice, and a copy of such notice shall be filed by the chairman of the
board of supervisors with the insurance carrier, who shall notify the
chairman of the workmen's compensation board of the termination of
coverage in the same manner as provided for cancellation of policy under
subdivision five of section fifty-four of this chapter.
If any participating fire protection district or fire alarm district
includes territory in more than one town, whether or not in more than
one county, the amount of cost of insurance, refund, dividend or
discount apportioned to such district shall be apportioned in the
proportion that the population of the district within each such town
bears to the population of the entire district. The figure used for
population in such case shall be the one stated in the agreement.
7. Any policy of insurance purchased pursuant to the provisions of
this subdivision seven as in effect prior to the first day of March,
nineteen hundred fifty-seven, shall be cancelled prior to, or as of, the
close of the twenty-eighth day of February, nineteen hundred
fifty-seven. The cost of such insurance shall be a town charge and shall
be levied and collected in the same manner as other town charges only in
the territory of such town outside of any villages and fire districts
not covered by such a policy.
8. The requirements of section ten of this chapter regarding the
provision of workers' compensation insurance as to owners and trainers
governed by the racing, pari-mutuel wagering and breeding law who are
employers under section two of this chapter are satisfied in full by
compliance with the requirements imposed upon owners and trainers by
section two hundred twenty-one of the racing, pari-mutuel wagering and
breeding law, provided that in the event double compensation, death
benefits, or awards are payable with respect to an injured employee
under section fourteen-a of this chapter, the owner or trainer for whom
the injured jockey, apprentice jockey or exercise person licensed under
article two or four of the racing, pari-mutuel wagering and breeding
law, and at the election of the New York Jockey Injury Compensation
Fund, Inc., with the approval of the New York state gaming commission,
employee of a licensed trainer or owner, is performing services as a
jockey, apprentice jockey or exercise person so licensed at the time of
the accident or, if approved by the New York state gaming commission, an
employee of a licensed trainer or owner shall bear the sole
responsibility for the amount payable pursuant to such section
fourteen-a in excess of the amount otherwise payable under this chapter,
unless there shall be a failure of the responsible owner or trainer to
pay such award within the time provided under this chapter. In the event
of such failure to pay and the board requires the fund to pay the award
on behalf of such owner or trainer who has been found to have violated
section fourteen-a of this chapter, the fund shall be entitled to an
award against such owner or trainer for the amount so paid which shall
be collected in the same manner as an award of compensation. Coverage
directly procured by any owner or trainer for the purpose of satisfying
the requirements of this chapter with respect to employees of the owner
or trainer shall not include coverage on any jockey, apprentice jockey
or exercise person licensed under article two or four of the racing,
pari-mutuel wagering and breeding law, and at the election of the New
York Jockey Injury Compensation Fund, Inc., with the approval of the New
York state gaming commission, any employee of a licensed trainer or
owner, to the extent that such jockey, apprentice jockey, exercise
person or, if approved by the New York state gaming commission, employee
of a licensed trainer or owner is also covered under coverage procured
by The New York Jockey Injury Compensation Fund, Inc. pursuant to the
requirements of section two hundred twenty-one of the racing,
pari-mutuel wagering and breeding law, and to that extent, coverage
procured by the fund pursuant to the requirements of the racing,
pari-mutuel wagering and breeding law shall be considered primary.
9. The requirements of sections ten and eleven of this chapter
regarding the securing and provision of workers' compensation benefits
as to a central dispatch facility, as defined in article six-F of the
executive law, are satisfied in full by compliance with the requirements
imposed upon such central dispatch facility by such article. Insurance
coverage directly procured by any central dispatch facility for the
purpose of satisfying the requirements of this chapter with respect to
employees of the central dispatch facility shall not include coverage of
any black car operator to the extent that the black car operator is also
covered under coverage secured by the New York black car operators'
injury compensation fund, inc. pursuant to the requirements of article
six-F of the executive law, and to that extent, coverage secured by the
fund pursuant to the requirements of article six-F of the executive law
shall be considered primary.
10. An individual self-insured employer or group self-insurer who
fails to file or maintain the security deposit required by the chair
will be deemed to have failed to secure compensation for the amount not
deposited, and shall be liable for all penalties for such failure
provided for under this title.
11. If at any time an individual self-insured employer or member of a
group self-insurer intentionally and materially understates or conceals
payroll, or intentionally and materially misrepresents or conceals
employee duties or if the employer intentionally or materially misstates
payroll or claims information for the purposes of determining employer
contributions as provided for under subdivisions three and three-a of
this section, such employer shall be deemed to have failed to secure
compensation and shall be subject to sanctions applicable under section
fifty-two of this article in addition to any other sanctions available
under law.
12. The chair, with the approval of the director of the budget, may
request the issuance of bonds by the dormitory authority for one or more
of the purposes authorized by section sixteen hundred eighty-q of the
public authorities law and by a self-insured bond financing agreement
authorized by section fifty-c of this article. The net proceeds of such
bonds shall be deposited into the self-insurer offset fund or as
otherwise provided by the applicable self-insured bond financing
agreement.
Self-insurer offset fund. 1. The chair shall maintain a fund
to be known as the self-insurer offset fund and such fund shall be held
in the sole custody of the chair. The chair may transfer the money in
such fund to the administrative account as necessary to effectuate the
purpose of this section. The chair shall use the money in the fund to
pay unmet claims for self-insurers.
2. At any time prior to April first, two thousand eleven, the chair
may withdraw funds from the uninsured employers fund provided for under
section twenty-six-a of this chapter, up to such amount as the chair
determines is sufficient to fund any anticipated additional expenses of
such fund, taking into account anticipated available revenues, but in no
event to exceed seventy-five million dollars in the aggregate. Such
funds shall be deposited into the self-insurer offset fund, and used in
accordance with subdivision one of this section. As consistent with this
section, the chair may set the timing of such withdrawals in its
discretion.
3. Beginning in two thousand fifteen, and each year thereafter, the
chair shall add to the total of each annual assessment made under
paragraph g of subdivision five of section fifty of this article the sum
of up to three million dollars, to be allocated to private group and
individual self-insurers in accordance with such paragraph. The chair
shall assess additional funds under this paragraph as necessary to
insure that there are sufficient funds in the fund for uninsured
employers to meet its liabilities, or if necessary in accordance with
section one hundred fifty-one of this chapter. Such funds as are
collected pursuant to this subdivision shall be deposited into the
uninsured employer fund until all funds withdrawn therefrom under
subdivision one of this section are returned with interest calculated at
an annual rate equal to the rate of return on funds in the fund for
uninsured employers from the prior year.
4. To the extent provided by the self-insurer bond financing agreement
the chair may request the dormitory authority to transfer bond proceeds
into such account for the purposes outlined in the bond financing
agreement.
5. At such time as the board is not obligated to pay any unmet claims
of a self-insurer, the fund created under this section shall be closed,
and any money remaining in the fund shall be deposited into the
uninsured employer fund.
Task force on group self-insurance. There is established the
task force on group self-insurance whose membership shall consist of the
chair or his or her designee, the superintendent of financial services
or his or her designee, the commissioner of labor or his or her
designee, and twelve members to be appointed by the governor as follows:
two upon nomination of the speaker of the assembly, two upon nomination
of the temporary president of the senate, one upon nomination by the
president of the New York state American federation of labor-congress of
industrial organizations, one upon the nomination of the business
council of New York state, one who is a representative of an individual
self-insurer or representative of an organization that represents
individual self-insurers, one who is a trustee or administrator of a
group self-insurer or representative of an organization that represents
group self-insurers, one who is a representative of an organization that
represents workers' compensation claimants, and three others without
limitation. The governor shall appoint the chair of the task force. The
task force shall report to the governor, the speaker of the assembly and
the temporary president of the senate on or before February first, two
thousand nine making recommendations concerning:
1. the prevention of future defaults by group self-insurers;
2. regulation of group self-insurers and its impact and effectiveness;
3. payment of claims insured by defaulted group self-insurers;
4. the long term viability of group self-insurers; and
5. such other topics related to group self-insurance as the task force
may deem necessary.
Self-insured bonds. 1. The chair, with the commissioner of
taxation and finance, is authorized to enter into a financing agreement
with the dormitory authority, to be known as the "self-insured bond
financing agreement". Such agreement shall set forth the process for
calculating the annual debt service of bonds issued by the dormitory
authority and any other associated costs in connection with the
self-insurer offset fund, as set forth in section sixteen hundred
eighty-q of the public authorities law. For purposes of this section,
"associated costs" may include a coverage factor, reserve fund
requirements, all costs of any nature incurred by the dormitory
authority in connection with the self-insured bond financing agreement
or pursuant thereto, the costs of any independent audits undertaken
under this section, and any other costs for the implementation of this
subdivision and the issuance of bonds by the dormitory authority,
including interest rate exchange payments, rebate payments, liquidity
fees, credit provider fees, fiduciary fees, remarketing, dealer, auction
agent and related fees and other similar bond-related expenses, unless
otherwise funded. By September first of each year, the dormitory
authority shall provide to the chair the calculation of the amount
expected to be paid by the dormitory authority in debt service and
associated costs for purposes of calculating the assessments for the
debt service portion of the assessment provided for under this chapter.
All monies received on account of such assessments shall be applied in
accordance with this chapter and with the self-insured bond financing
agreement until the financial obligations of the dormitory authority in
respect to its contract with its bondholders are met and all associated
costs payable to or by the dormitory authority have been paid,
notwithstanding any other provision of law respecting secured
transactions. This provision may be included by the dormitory authority
in any contract of the dormitory authority with its bondholders. The
self-insured bond financing agreement may restrict disbursements,
investments, or rebates, and may prescribe a system of accounts
applicable to the self-insurer offset fund as consistent with the
provisions of this chapter governing such fund, including custody of
funds and accounts with a trustee that may be prescribed by the
dormitory authority as part of its contract with the bondholders. For
purposes of this subdivision, the term "bonds" shall include notes
issued in anticipation of the issuance of bonds, or notes issued
pursuant to a commercial paper program.
2. The chair is hereby authorized to receive and credit to the
self-insurer offset fund any sum or sums that may at any time be
contributed to the state by the United States of America under any act
of Congress, or otherwise, to which the state may be or become entitled
by reason of any payments made out of such fund.
3. Notwithstanding any other law to the contrary, the chair shall be
the custodian of the self-insurer offset fund and, unless otherwise
provided for in the self-insured bond financing agreement, the
commissioner of taxation and finance shall invest any surplus or reserve
moneys thereof in securities which constitute legal investments for
savings banks under the laws of this state and in interest bearing
certificates of deposit of a bank or trust company located and
authorized to do business in this state or of a national bank located in
this state secured by a pledge of direct obligations of the United
States or of the state of New York in an amount equal to the amount of
such certificates of deposit, and may sell any of the securities or
certificates of deposit in which such fund is invested if necessary for
the proper administration or in the best interest of such fund.
Disbursements from such fund as provided by this subdivision shall be
made by the commissioner of taxation and finance unless the self-insured
bond financing agreement provides for some other means of authorizing
such disbursements that is no less protective of the fund. The
commissioner of taxation and finance as soon as practicable after
January first of each year, shall furnish to the chair a statement of
the fund, setting forth the balance of moneys in the said fund as of the
beginning of the calendar year, the income of the fund, the summary of
payments out of the fund on account of reimbursements and other charges
ordered to be paid by the board, and all other charges against the fund
and setting forth the balance of the fund remaining to its credit on the
prior December thirty-first of each year. Such statement shall be open
to public inspection in the office of the secretary of the board. The
chair shall include in the reports to the governor, the speaker of the
assembly and the temporary president of the senate as required by
section nine of part G of chapter fifty-seven of the laws of two
thousand eleven, a summary of the status of the bonding program
authorized by this section. The commissioner of taxation and finance may
establish within the self-insurer offset fund such accounts and
sub-accounts as he or she deems useful for the operation of the fund, or
as necessary to segregate moneys within the fund, subject to the
provisions of the self-insured bond financing agreement and of this
chapter.
Posting of notice regarding compensation. Every employer who has
complied with section fifty of this article shall post and maintain in a
conspicuous place or places in and about his place or places of business
typewritten or printed in English and Spanish notices in form prescribed
by the chairman, stating the fact that he has complied with all the
rules and regulations of the chairman and the board and that he has
secured the payment of compensation to his employees and their
dependents in accordance with the provisions of this chapter, but
failure to post such notice as herein provided shall not in any way
affect the exclusiveness of the remedy provided for by section eleven of
this chapter. Every employer who owns or operates automotive or
horse-drawn vehicles and has no minimum staff of regular employees
required to report for work at an established place of business
maintained by such employer and every employer who is engaged in the
business of moving household goods or furniture shall post such notices
in each and every vehicle owned or operated by him. Failure to post or
maintain such notice in any of said vehicles shall constitute
presumptive evidence that such employer has failed to secure the payment
of compensation. The chairman may require any employer to furnish a
written statement at any time showing the stock corporation, mutual
corporation or reciprocal insurer in which such employer is insured or
the manner in which such employer has complied with any provision of
this chapter. Failure for a period of ten days to furnish such written
statement shall constitute presumptive evidence that such employer has
neglected or failed in respect of any of the matters so required. Any
employer who fails to comply with the provisions of this section shall
be required to pay to the board a fine of five hundred dollars for each
violation, in addition to any other penalties imposed by law to be
deposited into the uninsured employers' fund.
Effect of failure to secure compensation. 1. (a) Failure to
secure the payment of compensation for five or less employees within a
twelve month period shall constitute a misdemeanor, and is punishable by
a fine of not less than one thousand nor more than five thousand
dollars. Failure to secure the payment of compensation for more than
five employees within a twelve month period shall constitute a class E
felony, and is punishable by a fine of not less than five thousand
dollars nor more than fifty thousand dollars in addition to any other
penalties otherwise provided by law. It shall be an affirmative defense
to any criminal prosecution under this section that the employer took
reasonable steps to secure compensation.
(b) Where any person has previously been convicted of a failure to
secure the payment of compensation within the preceding five years, upon
conviction for a subsequent violation such person shall be guilty of a
class D felony, and fined not less than ten thousand nor more than fifty
thousand dollars in addition to any other penalties including fines
otherwise provided by law.
(c) Where the employer is a corporation, the president, secretary and
treasurer thereof shall be liable for failure to secure the payment of
compensation under this section. It shall be an affirmative defense to
any action against any officer of a corporation under this section that
the officer took reasonable steps to ensure that the corporation secured
compensation, that proper internal procedures were in effect to do so,
and that proper internal controls existed to monitor compliance with
said procedures.
(d) If at any time an employer intentionally and materially
understates or conceals payroll, or intentionally and materially
misrepresents or conceals employee duties so as to avoid proper
classification for calculation of premium paid to secure compensation,
or intentionally and materially misrepresents or conceals information
pertinent to the calculation of premium paid to secure compensation,
such employer shall be deemed to have failed to secure compensation and
shall be subject to the sanctions applicable to this section.
(e) A stop-work order issued because an employer is deemed to have
failed to secure compensation under section one hundred forty-one-a of
this chapter shall have no effect upon an employer's or carrier's duty
to provide benefits under this chapter or upon any of the employer's or
carrier's rights and defenses.
2. All fines imposed under this chapter, except as herein otherwise
provided, shall be paid directly and immediately by the officer
collecting the same to the chairman, and shall be paid by him into the
uninsured employers' fund created under section twenty-six-a of this
chapter, provided, however, that all such fines collected by justices of
towns and villages shall be paid to the state comptroller in accordance
with the provisions of section twenty-seven of the town law and section
4-410 of the village law respectively.
3. In any prosecution hereunder the failure of the employer to file
with the chairman, within ten days after demand, a statement subscribed
by the employer and affirmed by him as true under the penalties of
perjury showing specifically (a) the name of the stock company, mutual
corporation or reciprocal insurer in which such employer is insured and
the number and the date of issuance and term of such policy of
insurance, or (b) that the said employer is insured with the state fund
in which case he shall give the number of such policy of insurance, the
date of issuance and term thereof, or (c) that the said employer has
been authorized to do business as a self-insurer pursuant to section
fifty of this article, giving the date of said authorization, or (d) a
legal reason, if any, why said employer is not required to secure
compensation, shall constitute prima facie evidence that the employer
has failed to secure compensation as herein required. The statement to
be filed herein shall be subscribed by the employer or if the employer
is a corporation by one of the officers herein named in which he shall
state that he has read such statement subscribed by him and knows the
contents thereof and that same is true of his own knowledge.
4. If, however, there has been an accident and the board shall have
made an award against the employer as a non-insured employer, the making
of such award, except in a case where the employer had secured
compensation insurance which was in effect at the time of the accident
but the carrier later became insolvent, shall constitute prima facie
evidence of an employment by the employer of an employee in an
occupation in which the said employer was required to carry compensation
and of the failure of the employer to secure the payment of workers'
compensation on the date of the accident involved in said award. A
certified copy of such award shall be received as competent evidence of
the making thereof in any criminal prosecution hereunder.
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
calculation of the penalty provided in this section, the imputed weekly
payroll for each employee, corporate officer, sole proprietor, or
partner shall be the New York state average weekly wage, multiplied by
1.5. Where the employer is a corporation, the president, secretary 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 application.
Release from liability. An employer securing the payment of
compensation by contributing premiums to the state fund shall thereby
become relieved from all liability for personal injuries or death
sustained by his employees, and the persons entitled to compensation
under this chapter shall have recourse therefor only to the state fund
and not to the employer. An employer shall not otherwise be relieved
from the liability for compensation prescribed by this chapter except by
the payment thereof by himself or his insurance carrier. The provisions
of this section shall not apply to the state of New York, as an employer
except to the extent that the fund has provided insurance coverage on an
actuarially sound basis to the state pursuant to the provisions of
section eighty-eight-c of this chapter. To the extent that the fund has
not provided insurance coverage on an actuarially sound basis pursuant
to section eighty-eight-c of this chapter, any state employee or other
person entitled to compensation under this chapter as a consequence of
personal injuries or death of a state employee shall have direct
recourse therefor only to the state.
The insurance contract. 1. Right of recourse to the insurance
carrier. Every policy of insurance covering the liability of the
employer for compensation shall be issued by one or more stock
companies, mutual corporations or reciprocal insurers authorized to
transact workers' compensation insurance in this state. In the case of a
policy with multiple insurers, such insurers shall share one hundred
percent of the liabilities by subscription, and one of the insurers
shall serve as the lead insurer for notice and cancellation purposes.
Such a policy shall contain a provision setting forth the right of the
chair to enforce in the name of the people of the state of New York for
the benefit of the person entitled to the compensation insured by the
policy either by filing a separate application or by making the
insurance carrier a party to the original application, the liability of
the insurance carrier in whole or in part for the payment of such
compensation; provided, however, that payment in whole or in part of
such compensation by either the employer or the insurance carrier shall
to the extent thereof be a bar to the recovery against the other of the
amount so paid.
2. Knowledge and jurisdiction of the employer extended to cover the
insurance carrier. Every such policy shall contain a provision that, as
between the employee and the insurance carrier, the notice to or
knowledge of the occurrence of the injury on the part of the employer
shall be deemed notice or knowledge, as the case may be, on the part of
the insurance carrier, or if more than one insurer, the lead carrier;
that jurisdiction of the employer shall, for the purpose of this
chapter, be jurisdiction of the lead insurance carrier and that such
insurance carrier shall in all things be bound by and subject to the
orders, findings, decisions or awards rendered against the employer for
the payment of compensation under the provisions of this chapter.
3. Insolvency of employer does not release the insurance carrier.
Every such policy shall contain a provision to the effect that the
insolvency or bankruptcy of the employer shall not relieve the insurance
carrier from the payment of compensation for injuries or death sustained
by an employee during the life of such policy.
4. Limitation of indemnity agreements. Every contract or agreement of
an employer the purpose of which is to indemnify him from loss or damage
on account of the injury of an employee by accidental means, or on
account of the negligence of such employer or his officer, agent or
servant, shall be absolutely void unless it shall also cover liability
for the payment of the compensation and for the payment into the special
funds provided for by this chapter. Every such contract or agreement of
insurance issued by an insurance carrier covering the liability of an
employer for the payment of the compensation and for the payment into
the special funds provided by this chapter shall be deemed to include
all employees of the employer employed at or in connection with the
business of the employer carried on, maintained, or operated at the
location or locations set forth in such contract or agreement and
employees for whose injuries a contractor may become liable under the
provisions of section fifty-six of this chapter. Any employee or
employees or class of employees not enumerated in section three,
subdivision one, group one to seventeen inclusive, of this chapter,
employed by a municipal corporation or political subdivision of the
state, may by the terms of the contract or agreement be expressly
excluded therefrom.
5. (a) Cancellation and termination of insurance contracts. No
contract of insurance issued by an insurance carrier against liability
arising under this chapter shall be cancelled within the time limited in
such contract for its expiration unless notice is given as required by
this section. When cancellation is due to non-payment of premiums and
assessments, such cancellation shall not be effective until at least ten
days after a notice of cancellation of such contract, on a date
specified in such notice, shall be filed in the office of the chair and
also served on the employer. When cancellation is due to any reason
other than non-payment of premiums and assessments, such cancellation
shall not be effective until at least thirty days after a notice of
cancellation of such contract, on a date specified in such notice, shall
be filed in the office of the chair and also served on the employer;
provided, however, in either case, that if the employer has secured
insurance with another insurance carrier which becomes effective prior
to the expiration of the time stated in such notice, the cancellation
shall be effective as of the date of such other coverage. No insurer
shall refuse to renew any policy insuring against liability arising
under this chapter unless at least thirty days prior to its expiration
notice of intention not to renew has been filed in the office of the
chair and also served on the employer.
Such notice shall be served on the employer by delivering it to him,
her or it or by sending it by mail, by certified or registered letter,
return receipt requested, addressed to the employer at his, her or its
last known place of business; provided that, if the employer be a
partnership, then such notice may be so given to any of one of the
partners, and if the employer be a corporation then the notice may be
given to any agent or officer of the corporation upon whom legal process
may be served; and further provided that an employer may designate any
person or entity at any address to receive such notice including the
designation of one person or entity to receive notice on behalf of
multiple entities insured under one insurance policy and that service of
notice at the address so designated upon the person or entity so
designated by delivery or by mail, by certified or registered letter,
return receipt requested, shall satisfy the notice requirement of this
section. Provided, however, the right to cancellation of a policy of
insurance in the state fund shall be exercised only for non-payment of
premiums and assessments or as provided in section ninety-four of this
chapter.
The provisions of this subdivision shall not apply with respect to
policies containing coverage pursuant to subsection (j) of section three
thousand four hundred twenty of the insurance law relating to every
policy providing comprehensive personal liability insurance on a one,
two, three or four family owner-occupied dwelling.
In the event such cancellation or termination notice is not filed with
the chair within the required time period, the chair shall impose a
penalty in the amount of up to five hundred dollars for each ten-day
period the insurance carrier or state insurance fund failed to file the
notification. All penalties collected pursuant to this subdivision shall
be deposited in the uninsured employers' fund.
(b) Conditional renewal for carriers under common control. A contract
of insurance shall remain in full force and effect subject to the same
rates as the expiring contract of insurance rates, unless written notice
is mailed or delivered by the insurance carrier to the employer, at the
address shown on the policy, and to such employer's authorized agent or
broker, indicating the insurance carrier's intention to condition
renewal upon issuance of a policy that supersedes a policy previously
issued by another insurance carrier under common control that will
result in an increased premium in excess of ten percent (exclusive of
any premium increase generated as a result of increased loss costs filed
and approved in accordance with subsection (e) of section two thousand
three hundred five of the insurance law, increased exposure units, or as
a result of experience rating, contractor credit adjustment program,
merit rating, retrospective rating or audit or removal or reduction of a
drug free credit, managed care credit, or deductible. Such notice shall
be mailed or delivered at least thirty days in advance of the expiration
date of the policy, and shall set forth the amount of the premium
increase (or, where such amount cannot reasonably be determined as of
the time the notice is provided due to failure of the policyholder to
provide to the insurance carrier the information necessary to determine
the premium, a reasonable estimate of the premium increase based upon
the information available to the insurance carrier at that time).
Nothing in this subdivision shall require the insurance carrier to
provide such notice when the employer, an agent or broker authorized by
the employer, or another insurance carrier of the employer has mailed or
delivered written notice that the policy has been replaced or is no
longer desired.
5-a. Issuance, amendment, endorsement or reinstatement of insurance
contracts. a. Any insurance carrier or the state insurance fund who
issues, reinstates, amends or endorses any contract of insurance or
rider thereto covering the liability of an employer for compensation
under this chapter shall file notification in the office of the chair
within thirty days after such issuance, reinstatement, amendment, or
endorsement of the contract. Such notice shall be filed in the manner
and form prescribed by the chair.
b. In the event notice required under this subdivision is not filed
with the chair within the thirty-day time period, or notice is not
provided by a group self-insured trust pursuant to regulation
promulgated by the board regarding notification of the trust's
commencement or termination of coverage for any employer, the chair may
impose a penalty of up to five hundred dollars for each ten-day period
the insurance carrier or state insurance fund or group self-insurance
trust failed to file the notification. All penalties collected pursuant
to this subdivision shall be deposited in the uninsured employers' fund.
c. The provisions of this subdivision shall not apply with respect to
insurance policies containing coverage pursuant to subsection (j) of
section three thousand four hundred twenty of the insurance law relating
to every policy providing comprehensive personal liability insurance on
a one, two, three or four family owner-occupied dwelling.
6. a. Insurance of officers of corporations. Every executive officer
of a corporation shall be deemed to be included in the compensation
insurance contract or covered under a certificate of self-insurance
unless that person is an unsalaried executive officer of a
not-for-profit corporation or unincorporated association and such
corporation or association elects to exclude that person from the
coverage of this chapter. Such election to exclude such person shall be
made in writing on a form prescribed by the chair and filed with the
insurance carrier. Such election shall be effective with respect to all
of the policies issued to the corporation or association by such
insurance carrier as long as it shall continuously insure the
corporation or association, provided that written notice of the
continuation of the election to exclude any or all executive officers is
given to the corporation or association with each renewal notice of the
policy. If such election is revoked, it shall be in writing on a form
prescribed by the chair, and shall be filed with the chair and the
insurance carrier. Such revocation shall not be effective until thirty
days after such filing. Any executive officer whose corporation or
association files an election not to be included under this chapter
shall be deemed not to be an employee within the intent of this chapter;
however, if not excluded, such officers and their dependents shall be
entitled to compensation as provided by this chapter.
b. An executive officer of any corporation who at all times during the
period involved owns all of the issued and outstanding stock of the
corporation and holds all of the offices pursuant to paragraph (e) of
section seven hundred fifteen of the business corporation law and who is
the executive officer of a corporation having other persons who are
employees required to be covered under this chapter shall be deemed to
be included in the compensation insurance contract or covered under a
certificate of self-insurance unless the officer elects to be excluded
from the coverage of this chapter. Such election shall be made by the
corporation filing a notice that the corporation elects to exclude the
executive officer of such corporation named in the notice from coverage
of this chapter. Such election shall be filed with the insurance carrier
or the chair in the case of self-insurance upon a form prescribed by the
chair of the workers' compensation board. Such election shall be
effective with respect to all policies issued to such corporation by
such insurance carrier as long as it shall continuously insure the
corporation and shall be final and binding upon the executive officer
named in the notice until revoked by the corporation in accordance with
paragraph a of this subdivision.
(c) An executive officer of any corporation who at all times during
the period involved owns all of the issued and outstanding stock of the
corporation and holds all of the offices pursuant to paragraph (e) of
section seven hundred fifteen of the business corporation law and who is
the executive officer of a corporation that has no other persons who are
employees required to be covered under this chapter shall be deemed to
be excluded from coverage under this chapter unless such officer elects
to be covered. Such coverage may be effected by obtaining an insurance
policy or in the case of self-insurance by the corporation submitting a
form prescribed by the chair of the workers' compensation board, giving
notice that the corporation elects to bring the executive officer of
such corporation named in the notice within the coverage of this
chapter.
d. Any two executive officers of a corporation who at all times during
the period involved between them own all of the issued and outstanding
stock of the corporation and hold all such offices, provided, however
that each officer must own at least one share of stock, who are the
executive officers of such corporation having other persons who are
employees required to be covered under this chapter shall be deemed to
be included in the compensation insurance contract or covered under a
certificate of self-insurance unless one or both the officers elect to
be excluded from the coverage of this chapter. Such election shall be
made by any such corporation filing a form prescribed by the chair of
the workers' compensation board with the insurance carrier or the chair
in the case of self-insurance giving notice that the corporation elects
to exclude one or both of the executive officers of such corporation
named in the notice from the coverage of this chapter. Such election
shall be effective with respect to all policies issued to such
corporation by such insurance carrier as long as it shall continuously
insure the corporation and shall be final and binding upon the executive
officers as named in the notice until revoked by the corporation. If
such election is revoked, it shall be in writing on a form prescribed by
the chair and shall be filed with the chair and the insurance carrier.
Such revocation shall not be effective until thirty days after such
filing.
e. Any two executive officers of a corporation who at all times during
the period involved between them own all of the issued and outstanding
stock of such corporation and hold all such offices, provided, however
that each officer must own at least one share of stock, who are the
executive officers of such corporation that has no other persons who are
employees required to be covered under this chapter shall be deemed to
be excluded from coverage under this chapter unless one or both officers
elect to be covered. Such coverage may be effected by obtaining an
insurance policy or, in the case of self-insurance, by the corporation
submitting a form prescribed by the chair of the workers' compensation
board, giving notice that the corporation elects to bring one or both
executive officers of such corporation named in the notice within
coverage of this chapter.
f. Notwithstanding the provisions of paragraph a of this subdivision
or any other provision of this chapter, any executive officer of a
religious, charitable or educational corporation and the officers of a
municipal corporation, and officers of any post or chapter of
organizations of veterans of any war of the United States may be brought
within the coverage of the insurance contract as if they were employees
by any such corporation filing with the insurance carrier, upon a form
prescribed by the chair of the workers' compensation board, a notice
that the corporation elects to bring one or more executive officers of
such corporation named in the notice within the coverage of this
chapter. Such election shall be effective with respect to all policies
issued to such corporation by such insurance carrier as long as it shall
continuously insure the corporation. If such election is revoked, it
shall be in writing on a form prescribed by the chair and filed with the
chair and with the insurance carrier and a copy thereof furnished to
each officer as to whom such revocation is applicable, upon a form
prescribed by the chair. Such revocation shall not be effective until
thirty days after such filing. The estimation of the wage values of
executive officers within the coverage of the insurance contract shall
be reasonable and separately stated and added to the valuation of the
payrolls upon which the premium is computed.
g. The executive officers brought within the coverage of the insurance
contract, and the dependents of any such executive officers, including
executive officers of religious, charitable or educational corporations
and officers of municipal corporations, and officers of any post or
chapter of organizations of veterans of any war of the United States
that have elected to bring their officers within the coverage of the
policy, shall have the same rights and remedies as any employee and
shall be entitled to compensation and medical care as provided by this
chapter, and the insurance carrier shall be liable therefor and for
payments into the special funds provided in this chapter as in the case
of an employee. The executive officers who may be brought within the
coverage of an insurance contract shall include an officer of a
corporation who at all times during the period involved between them
owns all of the issued and outstanding stock of the corporation and
holds all of the offices pursuant to paragraph (e) of section seven
hundred fifteen of the business corporation law or two executive
officers of a corporation who at all times during the period involved
between them own all of the issued and outstanding stock of such
corporation and hold all such offices and who is the executive officer
or who are the executive officers of a corporation that has no other
persons who are employees required to be covered under this chapter.
h. Any officer or officers, elective or appointive, of a municipal
corporation or other political subdivision of the state complying with
the provisions of group nineteen of subdivision one of section three of
this chapter shall be deemed executive officers subject to the
provisions of this subdivision.
6-a. Insurance contracts with fire or ambulance districts.
Notwithstanding any other provision of this section or of this chapter,
any insurance contract to secure workers' compensation for a fire or
ambulance district pursuant to subdivision one or subdivision two of
section fifty of this chapter issued to take effect on or after July
first, nineteen hundred sixty, in relation to a fire district and
January first, in the year next succeeding the year in which this
subdivision as hereby amended becomes effective, in relation to an
ambulance district or any such contract renewed to continue in effect on
or after such dates, shall provide workers' compensation coverage for
all fire or ambulance district officers, whether elective or appointive,
and all fire or ambulance district employees, whether or not they are
compensated for their services, unless the board of fire or ambulance
commissioners of the fire district or ambulance district by resolution
elects not to provide such coverage for any one or more of such officers
or employees, or class thereof. Such election not to provide such
coverage shall be effective with respect to all such insurance contracts
thereafter issued to such fire or ambulance district by any insurance
carrier until revoked in whole or in part by resolution of the board of
fire or ambulance commissioners of the fire or ambulance district. Such
election not to provide such coverage shall not become effective until
thirty days after a copy of such resolution has been filed with the
chairman of the workers' compensation board and with the insurance
carrier and a copy thereof is furnished to each officer and employee as
to whom such revocation is applicable. The chairman of the workers'
compensation board shall prescribe the form of such resolution. The
provisions of this subdivision shall not be applicable in cases where
the injury arises out of and in the course of duty as a volunteer
firefighter or a volunteer ambulance worker or as a civil defense
volunteer and where the computation of benefits would be made under the
provisions of the volunteer firefighters' benefit law or the volunteer
ambulance workers' benefit law or under article ten of this chapter.
7. Limitation of the issuance of policies by a foreign insurance
company. No policy or contract of insurance issued by a foreign stock
corporation or mutual association authorized to transact the business of
workers' compensation insurance in this state, except a corporation
organized under the laws of a state or country outside of the United
States and domiciled in this state, covering or intended to cover the
liability of an employer to his employees under this chapter, shall be
accepted as a compliance with subdivision two of section fifty of this
chapter, unless such foreign stock corporation or mutual association
shall have filed with the superintendent of financial services a bond or
undertaking with good and sufficient sureties to the people of the state
of New York, and conditioned upon the payment in full of any and all
compensation and benefits as provided in this chapter to any and all
persons entitled thereto under any such policy or contract of insurance.
Such bond shall be approved as to form by the attorney-general and as to
sufficiency by the superintendent of financial services. The amount of
such bond shall be such sum as may reasonably represent twenty-five per
centum of the outstanding reserves for compensation losses on policies
issued by such foreign stock corporation or mutual association upon
risks located in the state of New York as determined by law or by the
requirements of the superintendent of financial services, provided,
however, that the amount of such bond shall in no case be less than
twenty-five thousand dollars nor more than one million dollars. Such
bond shall be renewed annually. Every such bond shall contain a
provision authorizing the attorney-general upon the certificate of the
superintendent of financial services that there has been default in the
payment of compensation for thirty days or that the bonded company has
become insolvent to enforce such bond in the name of the people of the
state of New York for the benefit of any and all persons entitled to the
compensation assured by any policy issued by such foreign stock
corporation or mutual association or otherwise entitled to any benefits
under such policy. In lieu of the bond required to be given hereunder
any such foreign stock corporation or mutual association may deposit
with the superintendent of financial services securities of the kind
prescribed in section one thousand three hundred eighteen of the
insurance law in an amount equal to twenty-five per centum of the
outstanding reserves for compensation losses on policies issued by such
foreign stock corporation or mutual association upon risks located in
the state of New York, but not less than twenty-five thousand dollars
nor more than one million dollars. In computing the amount of such
securities they shall be valued as determined by the superintendent of
financial services in valuing the assets of insurance companies. Such
securities shall be held by the superintendent of financial services as
a special deposit and as express security for the payment of such
compensation or benefits and may be sold by the said superintendent
without notice in the event that there has been default in the payment
of compensation for thirty days or that the depositing company has
become insolvent. The income thereon shall be collected by the
superintendent of financial services and, prior to any default in the
payment of such compensation or benefits, shall be paid over by him to
the stock corporation or mutual association depositing the same.
However, no such bond or undertaking shall be required to be filed
after July first, nineteen hundred thirty-eight, by any carrier making
payment to the stock or mutual funds respectively established by
sections one hundred seven and one hundred nine-d of this chapter.
8. A self-employed person, a partner of a partnership as defined in
section ten of the partnership law but not including a limited partner,
a partner of a registered limited liability partnership as defined in
section two of the partnership law, a member of a limited liability
company as defined in subdivision (m) of section one hundred two of the
limited liability company law or a member of a professional service
limited liability company as defined in subdivision (f) of section one
thousand two hundred one of the limited liability company law, having
other persons who are employees required to be covered under this
chapter may be included in the compensation insurance contract or
covered under a certificate of self-insurance. Such election shall be
made by any such partnership, sole proprietorship, registered limited
liability partnership, limited liability company or professional service
limited liability company filing with the insurance carrier or the chair
in the case of self-insurance upon a form prescribed by the chair, a
notice that the partnership, sole proprietorship, registered limited
liability partnership, limited liability company or professional service
limited liability company elects to include the partner, partners, the
self-employed person or member named in the notice in the coverage of
this chapter. Such election shall be effective with respect to all
policies issued to such partnership, sole proprietorship, registered
limited liability partnership, limited liability company or professional
service limited liability company by such insurance carrier as long as
it shall continuously insure the employees of the partnership, sole
proprietorship, registered limited liability partnership, limited
liability company or professional service limited liability company.
Such election shall be final and binding upon the partner, self-employed
person or member named in the notice until revoked by the partnership,
sole proprietorship, registered limited liability partnership, limited
liability company or professional service limited liability company. A
self-employed person, a partner of a partnership, a partner of a
registered limited liability partnership, a member of a limited
liability company or a member of a professional service limited
liability company having no other persons who are employees required to
be covered under this chapter shall be deemed to be excluded from
coverage under this chapter unless he or she elects to be covered. Such
coverage may be effected by obtaining an insurance policy.
The self-employed persons, partners of a partnership, partners of a
registered limited liability partnership, members of a limited liability
company or members of a professional service limited liability company
brought within the coverage of the insurance contract, and the
dependents of any such self-employed persons, partners of a partnership,
partners of a registered limited liability partnership, members of a
limited liability company or members of a professional service limited
liability company shall have the same rights and remedies as any
employee or his or her dependents and shall be entitled to compensation
and medical care as provided by this chapter, and the insurance carrier
shall be liable therefor and for payments into the special funds
provided in this chapter as in the case of an employee.
Security where coverage is in issue. Where the issue of policy
coverage is raised by a carrier in any hearing or proceeding before the
board, and an appeal by the carrier, or the making of an application for
review is made, although an award is made to a claimant therein against
the employer and carrier, the chairman may, nevertheless, require the
employer to deposit the amount of said award or furnish such security
therefor as may be deemed satisfactory by said chairman. If the employer
shall fail to make such deposit or give such security, the award may be
enforced promptly against said employer by the entry of judgment by and
in the name of the chairman, for and in behalf of such claimant in
accordance with the provisions of section twenty-six hereof. In the
event that the award made as against the carrier is finally affirmed,
the employer shall be entitled to the return of said security deposited
or, if the said award has been paid, to an award by way of reimbursement
against the said carrier for the amount of money paid upon the award or
judgment entered thereon to the claimant. If the award against the
carrier is finally reversed on appeal, then the carrier is relieved of
liability and not otherwise.
Enforcement on failure to pay award or judgment. In case of
default by a carrier or self-insured employer in the payment of any
compensation due under an award for the period of thirty days after
payment is due and payable, or in the case of failure by a carrier or
self-insured employer to make full payment of an award for medical care
or supplies issued by the board or the chair pursuant to section
thirteen-g of this chapter, the chair in any such case or on the chair's
consent any party to an award may file with the county clerk for the
county in which the injury occurred or the county in which the carrier
or self-insured employer has his or her principal place of business, (1)
a certified copy of the decision of the board awarding compensation or
ending, diminishing or increasing compensation previously awarded, from
which no appeal has been taken within the time allowed therefor, or if
an appeal has been taken by a carrier or self-insured employer who has
not complied with the provisions of section fifty of this article, where
he or she fails to deposit with the chair the amount of the award as
security for its payment within ten days after the same is due and
payable, or (2) a certified copy of the award for medical care or
supplies issued pursuant to section thirteen-g of this chapter, and
thereupon judgment must be entered in the supreme court by the clerk of
such county in conformity therewith immediately upon such filing. If the
payment in default be an installment, the board may declare the entire
award due and judgment may be entered in accordance with the provisions
of this section. Such judgment shall be entered in the same manner, have
the same effect and be subject to the same proceedings as though
rendered in a suit duly heard and determined by the supreme court,
except that no appeal may be taken therefrom. The court shall vacate or
modify such judgment to conform to any later award or decision of the
board upon presentation of a certified copy of such award or decision.
The award may be so compromised by the board as in the discretion of the
board may best serve the interest of the persons entitled to receive the
compensation or benefits. Where an award has been made against a carrier
or self-insured employer in accordance with the provisions of
subdivision nine of section fifteen, or of section twenty-five-a of this
chapter, such an award may be similarly compromised by the board, upon
notice to a representative of the fund to which the award is payable,
but if there be no representative of any such fund, notice shall be
given to such representative as may be designated by the chair of the
board; and notwithstanding any other provision of law, such compromise
shall be effective without the necessity of any approval by the state
comptroller. Neither the chair nor any party in interest shall be
required to pay any fee to any public officer for filing or recording
any paper or instrument or for issuing a transcript of any judgment
executed in pursuance of this section. The carrier or self-insured
employer shall be liable for all costs and attorneys fees necessary to
enforce the award. For the purposes of this section, the term "carrier"
shall include the state insurance fund and any stock corporation, mutual
corporation or reciprocal insurer authorized to transact the business of
workers' compensation insurance in this state.
Acceptance of premium by carrier an estoppel. Acceptance of a
premium on a policy securing to an employee compensation, either alone
or in connection with other insurance, shall estop the carrier so
accepting from pleading that the employment of such employee is not a
hazardous employment or the employment is not carried on for pecuniary
gain.
Subcontractors. A contractor, the subject of whose contract is,
involves or includes a hazardous employment, who subcontracts all or any
part of such contract shall, in any case of injury or death to any
employee, arising out of and in the course of such hazardous employment,
be liable for and pay compensation to such employee or persons entitled
to compensation on the death of such employee, and in any such case of
injury or death where the employer of such employee would be required to
make payments into the special funds provided by subdivisions eight and
nine of section fifteen and subdivision three of section twenty-five-a,
the contractor or, if insured, his insurance carrier shall be liable for
and pay into such special funds the amounts required by such
subdivisions eight and nine of section fifteen and subdivision three of
section twenty-five-a to be paid by such employer; unless the
subcontractor primarily liable for such compensation or payments into
such special funds has secured compensation therefor as provided in this
chapter.
Any contractor, or his insurance carrier, who shall, under the
provisions of this section, become liable for such compensation or
payments into such special funds may recover the amount of such
compensation paid or payments made into such special funds from the
subcontractor primarily liable therefor. The claim for such recovery
shall constitute a lien against any moneys due or to become due to the
subcontractor from such contractor. Such claim for recovery, however,
shall not affect the right of such employee or persons entitled to
compensation on the death of such employee or the chairman from
recovering such compensation or payments into such special funds from
the contractor or his insurance carrier.
Notwithstanding any other provision of this chapter, in any case of
injury or death to an executive officer of any corporation who at all
times during the period involved owns all of the issued and outstanding
stock of the corporation and holds all of the offices pursuant to
paragraph (e) of section seven hundred fifteen of the business
corporation law or to a self-employed person or to a partner of a
partnership as defined in section ten of the partnership law, the
contractor or, if insured, his insurance carrier shall not be liable for
the payment of compensation or medical expenses to or on behalf of such
executive officer, self-employed person or partner of a partnership or
to his surviving spouse, children and dependents as defined by section
sixteen of this chapter solely because of the injury or death of such
executive officer, self-employed person or partner.
Notwithstanding any other provision of this chapter, in any case of
injury or death of any one of two executive officers of any corporation
who at all times during the period involved between them own all of the
issued and outstanding stock of such corporation and hold all of such
offices pursuant to paragraph (e) of section seven hundred fifteen of
the business corporation law provided, however, that each officer must
own at least one share of stock, the contractor or, if insured, his
insurance carrier shall not be liable for the payment of compensation or
medical expenses to or on behalf of such executive officers or to their
surviving spouse, children and dependents as defined by section sixteen
of this chapter solely because of the injury or death of any such
executive officers.
An owner of timber other than farm lands, who contracts with another
to carry on or perform work or service in connection therewith, which
work or service is, involves or includes a hazardous employment, shall
for the purposes of this section be deemed a contractor, and such other
a subcontractor.
Restriction on issue of permits and the entering into contracts
unless compensation is secured. 1. The head of a state or municipal
department, board, commission or office authorized or required by law to
issue any permit for or in connection with any work involving the
employment of employees in a hazardous employment defined by this
chapter, and notwithstanding any general or special statute requiring or
authorizing the issue of such permits, shall not issue such permit
unless proof duly subscribed by an insurance carrier is produced in a
form satisfactory to the chair, that compensation for all employees has
been secured as provided by this chapter. Nothing herein, however, shall
be construed as creating any liability on the part of such state or
municipal department, board, commission or office to pay any
compensation to any such employee if so employed.
2. The head of a state or municipal department, board, commission or
office authorized or required by law to enter into any contract for or
in connection with any work involving the employment of employees in a
hazardous employment defined by this chapter, notwithstanding any
general or special statute requiring or authorizing any such contract,
shall not enter into any such contract unless proof duly subscribed by
an insurance carrier is produced in a form satisfactory to the chair,
that compensation for all employees has been secured as provided by this
chapter.
Payment of compensation to persons providing housekeeping or
nursing services. An employer under the workmen's compensation law, or
the insurance carrier under the policy of workmen's compensation
insurance covering such employer, or any other person or organization
including the state, a municipal corporation or other political
subdivision of the state which provides housekeeping, or nursing
services to an injured employee or recipient of social services
assistance or which arranges for such services by authorizing the hiring
of an employee for such purposes and which supplies funds for the
payment of such employee's wages, notwithstanding any general or special
statute requiring or authorizing such housekeeping or nursing services,
shall be liable for the payment of compensation to the person performing
such housekeeping or nursing services as provided by this chapter.
Nothing in this section shall create an employer-employee relationship
when such relationship does not otherwise exist.
ARTICLE 5 County Self-insurance Plan
Definitions. As used in this article, the following terms shall
mean and include:
1. "Public corporation." A corporation as defined in section three of
the general corporation law, except that a public benefit corporation
shall not be deemed a public corporation for the purposes of this
article unless it operates in a territory coterminous with the county or
a tax district or districts within the county.
1-a. "Contract agency", "contract association". A not-for-profit
corporation or association which provides services exclusively to a
single county on a contractual basis and receives at least eighty-five
percent of its funding from the local, state or federal government.
2. "Municipal corporation," "district corporation" and "public benefit
corporation." A municipal corporation, district corporation and public
benefit corporation, respectively, as defined in section three of the
general corporation law.
3. "Plans." The plan of self-insurance provided for in this article.
4. "Committee." The committee appointed pursuant to section sixty-four
of this chapter to administer the plan.
5. "Administrator." The administrator appointed pursuant to section
sixty-four of this chapter to administer the plan.
6. "Participant." A public corporation participating in a plan.
7. "Liability." The liability of a participant to pay compensation,
assessments and all other obligations imposed by or pursuant to this
chapter, the volunteer firefighters' benefit law, and the volunteer
ambulance workers' benefit law except as otherwise provided in section
sixty-one of this chapter.
8. "Reserve." The self-insurance reserve provided for in section
sixty-nine of this chapter.
Continuance of existing plans; establishment of new plans. 1.
Plans of mutual self-insurance heretofore adopted by boards of
supervisors of counties pursuant to former subdivision three-a of
section fifty of this chapter, are hereby continued; provided, however,
that the board of supervisors of a county must provide by local law for
the continuation of the plan and for the administration thereof pursuant
to this article on or before July thirty-first, nineteen hundred
fifty-six, or such plan shall be deemed abandoned as of October
thirty-first, nineteen hundred fifty-six, subject to the provisions of
subdivision two of section seventy-five of this chapter. All such plans
not so abandoned shall be operated pursuant to the provisions of this
article and local laws adopted pursuant thereto.
2. The board of supervisors of a county may by local law establish the
plan of self-insurance provided for in this article.
3. A local law establishing a plan pursuant to this article may,
notwithstanding the provisions of paragraph f of subdivision one of
section eleven of the municipal home rule law, provide that the
provisions of subdivision three of section sixty-three of this article,
as amended from time to time, shall not be applicable to the plan in
that county and, if such plan is established, the term "liability", as
used in this article, shall not include any compensation, assessments or
other obligations under the volunteer firefighters' benefit law and the
provisions of subdivision three of section sixty-three of this article,
as amended from time to time, shall not be applicable in relation to
such plan.
4. If a plan has been continued pursuant to this article, the board of
supervisors may, notwithstanding the provisions of paragraph f of
subdivision one of section eleven of the municipal home rule law, adopt
a local law on or before the first day of August in any year to provide
that the provisions of subdivision three of section sixty-three of this
article, as amended from time to time, shall not be applicable to the
plan in that county after the thirty-first day of December in such year,
except as to liabilities existing on such latter date, and, if such a
local law is adopted, the term "liability", as used in this article,
shall not include any compensation, assessments or other obligations
under the volunteer firefighters' benefit law, and the provisions of
subdivision three of section sixty-three of this article shall not be
applicable in relation to such plan, after the thirty-first day of
December in such year, except as to, and in connection with, liabilities
existing on such thirty-first day of December.
5. If a local law has been adopted pursuant to either subdivision
three or subdivision four of this section, the board of supervisors may,
notwithstanding the provisions of paragraph f of subdivision one of
section eleven of the municipal home rule law, adopt a local law on or
before the first day of August in any year to provide that the
provisions of subdivision three of section sixty-three of this chapter,
as amended from time to time, shall be applicable to the plan in that
county after the thirty-first day of December in such year, and, if such
a local law is adopted, the term "liability", as used in this article
shall include any compensation, assessments, or other obligations under
the volunteer firefighters' benefit law, the volunteer ambulance
workers' benefit law, and the provisions of subdivision three of section
sixty-three of this chapter shall be applicable in relation to such
plan, after the thirty-first day of December in such year, and, further,
the provisions of section sixty-seven of this chapter shall be
applicable on and after the first day of August in such year in relation
to such plan.
6. Notwithstanding the provisions of paragraph f of subdivision one of
section eleven of the municipal home rule law, the board of supervisors
of a county may by local law amend the definition of "liability", as
defined in subdivision seven of section sixty of this article, to
exclude any liability under paragraph m of subdivision one of section
five of the volunteer firefighters' benefit law.
Participants. Each plan shall have at least two municipal
corporations as participants. The county shall be one of the
participants in a plan. Any contract agency or contract association
with the approval of the county government and any other public
corporation may by resolution of its governing body elect to become a
participant in a plan established in the county, or, in the case of a
public corporation or contract agency or contract association located in
more than one county, in a plan established in one of such counties;
provided, however, that the rules and regulations adopted pursuant to
section sixty-five of this chapter may exclude from participation in a
plan any type of public corporation or contract agency or contract
association other than the county and cities, towns and villages.
Liability of county. 1. In the case of plans established
pursuant to former subdivision three-a of section fifty of this chapter
and continued pursuant to the provisions of section sixty-one of this
chapter, payments with respect to (a) the liability of participants
arising on and after January first, nineteen hundred fifty-seven, and
(b) the joint liability of the participants imposed pursuant to such
former subdivision three-a of section fifty of this chapter, shall be
made by the county.
2. When a plan is established pursuant to this article, payments with
respect to the liability of participants arising on and after the
effective date of the plan shall be made by the county.
3. Where a town participates in a plan, in addition to payments with
respect to the liability of the town, the county shall make payments
with respect to that portion of the liability of all villages, fire
districts, fire protection districts and fire alarm districts within
such town and all territory within such town outside cities, villages,
fire districts, fire protection districts and fire alarm districts
arising out of the death of or injury to volunteer firefighters;
provided, however, that the county shall not be obligated to make such
payments in the case of a village, fire district, fire protection
district or fire alarm district, located in more than one town unless
the town board of each town containing part of the village or district
by resolution elects to become a participant in the plan. Participation
in a plan by a village or fire district shall make the county liable for
such payments where the town or towns in which such village or fire
district is located are not participants in the plan. The term "injury",
as used in this subdivision, means "injury" as defined in subdivision
four of section three of the volunteer firefighters' benefit law, as
amended from time to time. If a county has elected to establish a
self-insurance plan for itself, it may elect to extend coverage under
such plan to voluntary ambulance companies upon the same terms and
conditions as such coverage applies to volunteer firefighters.
4. The expenditure of county funds for payments authorized or required
by this article is hereby declared to be for a county purpose.
5. For the purposes of this article, officers and employees of a soil
conservation district located wholly within a county shall be deemed
employees of the county in which such district is located.
6. Notwithstanding the foregoing provisions of this section, each
participant alone shall be obligated to pay the increased liability
provided for by section fourteen-a of this chapter.
7. Notwithstanding any other provision of this chapter, each
participant in a plan continued or established pursuant to this article
shall be deemed to have duly taken such action, as would have otherwise
been required by this chapter, to elect to bring all of its employees,
or officers, elected or appointed or otherwise, not enumerated in
section three, subdivision one, groups one to seventeen inclusive, of
this chapter, within the coverage of this chapter hereafter,
notwithstanding the definitions of the terms "employment", "employer",
or "employee" in subdivisions three, four and five of section two of
this chapter, and each participant which has any group, as defined by
order of the New York state civil defense commission, of civil defense
volunteers not enumerated in section three, subdivision one, group
seventeen, who are personnel of a volunteer agency of the local office
of such participant, as defined in the state defense emergency act,
shall be deemed to have duly taken such separate and distinct action of
its legislative or other governmental body, as would otherwise have been
required by this chapter, to bring such group of civil defense
volunteers within the coverage of this chapter hereafter as to their
authorized civil defense services to the extent not covered under
article ten of this chapter, and hereafter all such officers and
employees and such civil defense volunteers of a participant in a plan
continued or established pursuant to this article shall be within the
coverage of this chapter to the same extent as if all appropriate action
had been taken pursuant to section three, subdivision one, group
nineteen, or any other applicable provision, of this chapter; provided,
however, in relation to such officers and employees of the participant,
or any class or group of such officers and employees of the participant
or for such civil defense volunteers who are personnel of the
participant, a participant may (1) elect not to provide such coverage,
(2) elect to provide such coverage in a manner provided in section fifty
of this chapter other than under article five thereof, (3) elect to
revoke an election made under either "(1)" or "(2)" above and adopt the
other of such elections, or (4) elect to revoke an election made under
either "(1)" "(2)" or "(3)" above and have such coverage provided under
the plan as if no election had been made hereunder. Any such election
shall become effective when adopted if it is filed with the chairman of
the workmen's compensation board and with the committee or administrator
of the plan within ten days after adoption, otherwise it shall become
effective when filed with both the chairman of the workmen's
compensation board and the committee or administrator of the plan. The
chairman of the workmen's compensation board may prescribe the form or
forms of any such election. Notwithstanding the provisions of section
three, subdivision one, group nineteen, of this chapter, if the county
elects to exclude one or more groups of such civil defense volunteers of
the county's office of civil defense, then the plan shall not be liable
for coverage under this chapter for such civil defense volunteers so
excluded, but this shall not preclude a town or a village in such county
or a city participating in the consolidated county office of civil
defense of such county from bringing the members of such group or groups
of duly enrolled civil defense volunteers who are residents of and are
enrolled from such town, village or city within the coverage of this
chapter during any period when the county has so excluded, but in any
such case the compensation shall be secured in a manner provided in
section fifty of this chapter other than under article five thereof.
This subdivision shall not affect the coverage of officers and employees
and civil defense volunteers for whom mandatory coverage is provided
under this chapter.
8. Except as provided in subdivision three or nine of this section in
relation to volunteer firefighters and volunteer ambulance workers,
participation in a plan by a town shall not make the county liable for
payments of compensation under this chapter in relation to the officers
and employees of a fire or ambulance district located in whole or in
part in such town. Except as provided in subdivision three of this
section in relation to volunteer firefighters or subdivision nine of
this section in relation to volunteer ambulance workers, the county
shall be liable for payments of compensation under this chapter in
relation to the officers and employees of a fire or ambulance district
only in cases where the fire or ambulance district is a participant in
the plan.
9. Where a town participates in a plan, in addition to payments with
respect to the liability of the town, the county shall make payments
with respect to that portion of the liability of all villages, ambulance
districts, within such town and all territory within such town outside
cities, villages, ambulance districts, arising out of the death of or
injury to volunteer ambulance workers; provided, however, that the
county shall not be obligated to make such payments in the case of a
village, ambulance district, located in more than one town unless the
town board of each town containing part of the village or district by
resolution elects to become a participant in the plan. Participation in
a plan by a village or ambulance district shall make the county liable
for such payments where the town or towns in which such village or
ambulance district is located are not participants in the plan. The term
"injury", as used in this subdivision, means "injury" as defined in
subdivision four of section three of the volunteer ambulance workers'
benefit law, as amended from time to time.
Administration of plan. 1. The board of supervisors shall by
local law provide for the administration of the plan, such plan to be
administered by either a committee or an administrator. Any county
officer or employee or other person may be appointed to such committee
or act as administrator, or be appointed or employed by such committee
or administrator. The committee or administrator may employ, subject to
the approval of the board of supervisors, such persons as may be deemed
necessary for the operation of the plan, and may contract for necessary
actuarial, or other expert or professional services. Members of the
committee or the administrator, and all other officers and employees of
the plan, shall receive such salary or other remuneration, payable from
moneys of the plan, as shall be fixed by the board of supervisors.
Notwithstanding the provisions of any other law, a county officer or
employee, other than a member of the board of supervisors, in addition
to his salary as such officer or employee, may be compensated as a
member of such committee, as such administrator, or as an officer or
employee of the plan.
2. The county treasurer shall be the custodian of all moneys of the
plan. Such moneys shall be accounted for as a separate fund to be known
as the county self-insurance fund, and shall be deposited in a bank or
trust company designated in the manner provided by law as a depositary
of moneys of the county. Disbursements of such moneys, except for
payment of fixed salaries, shall be made only upon order of the
committee or administrator, as the case may be. Compensation may be paid
upon such order to persons entitled thereto in the manner provided in
section twenty-five of this chapter. The amount of compensation payable
prior to an award pursuant to such order shall constitute a settled
claim within the meaning of the local finance law. Books, records and
papers of the plan shall be subject to examination and audit as provided
in section two hundred ten of the county law.
3. The county attorney shall be legal advisor to the plan and it shall
be his duty to represent the plan in all controversies. In addition, the
county attorney may engage subject to the approval of the board of
supervisors, counsel in respect to any particular subject matter,
proceeding or litigation, in which event the expense of engaging such
special counsel shall be charged as an administrative expense of the
plan.
Rules and regulations. 1. The board of supervisors shall by
local law adopt rules and regulations not inconsistent with law for the
fair and equitable administration and operation of the plan. Such rules
and regulations may provide standards and conditions with respect, but
not limited, to (a) entry and withdrawal of participants, (b) medical
examinations, (c) safety programs, (d) reports by participants and (e)
cooperation by participants, provided, however, that such rules and
regulations, or failure to adopt the same, shall not prevent withdrawal
of a participant from the plan upon the condition that such participant
shall pay, in a lump sum or in installments, an equitable share of the
outstanding liabilities of the plan as of the date of withdrawal. Any
payments required upon entry to or withdrawal from a plan may be
financed, in whole or in part, by any municipal corporation or district
corporation by the issuance of bonds or capital notes pursuant to the
local finance law.
2. Such rules and regulations may also provide that for any violation
thereof or of this chapter, a participant may be expelled from the plan
or be charged with a penalty. Any such penalty shall be collected at the
same time and in the same manner as other charges against participants
as provided in section sixty-seven of this chapter, or in such other
manner as may be provided in such rules and regulations. A participant
liable for the payment of a penalty may by action of its governing body
elect to recover the amount thereof from the public officer or employee
whose act or failure to act resulted in the imposition of such penalty.
In such event, the amount of the penalty may be withheld from the salary
or other remuneration payable to such officer or employee.
Apportionment of costs. 1. The total of the several amounts set
forth in the annual estimate prepared pursuant to section sixty-seven of
this chapter shall be apportioned to each participant in the proportion
that the full valuation of its taxable real property bears to the
aggregate full valuation of all participants; provided, however, that
the rules and regulations adopted pursuant to section sixty-five of this
chapter may provide that apportionments to a class of participants shall
be based on a percentage of full valuation rather than on entire full
valuation.
2. The full valuation of taxable real property shall be determined by
the use of state equalization rates established pursuant to article
two-a of the tax law. The full valuation of a public benefit corporation
shall be the same as the full valuation of taxable real property of the
tax district or districts within which it operates.
Annual estimate; payments by participants. 1. The committee or
administrator shall annually, not later than the fifteenth day of
August, file with the board of supervisors an estimate of the several
amounts necessary for the ensuing calendar year (a) to meet the payments
with respect to the liability of participants required to be made by the
county pursuant to section sixty-three of this chapter, (b) to pay the
administrative expenses of the plan, (c) to repay any amounts advanced
to the plan and (d) to provide for contributions to the reserve, if any.
The committee or administrator shall then determine the share of such
amounts chargeable to each participant in the manner prescribed by
section sixty-six of this chapter. A list of the amount of the share
payable by each participant shall be furnished to the county treasurer.
The committee or administrator shall notify each participant in writing
not later than September first of the amount of such share. Each
participant shall pay the county treasurer the amount so specified in
such notice not later than thirty days after the commencement of such
participant's next fiscal year. All amounts so received shall be
credited to the county self-insurance fund. If any such amount shall not
be paid within the time limit, the same shall be recovered by an action
brought by the county or such amount shall be certified by the county
treasurer to the board of supervisors for inclusion in the next
succeeding tax levy, if any, against property taxable by the participant
responsible therefor.
2. Notwithstanding the foregoing provisions of this section, the board
of supervisors may by local law provide, in lieu of collecting the
amounts apportioned to participants, or a class thereof, as provided in
subdivision one of this section, that each such participant's share of
such amounts shall be collected by inclusion in the next succeeding tax
levy against property taxable by the participant responsible therefor.
When collected such amounts shall be paid over to the county treasurer
and by him credited to the county self-insurance fund.
Advances to county self-insurance fund. If at any time there are
insufficient moneys in the county self-insurance fund, exclusive of the
reserve, to operate the plan, the county treasurer shall advance to such
fund such amount from the general fund of the county, as shall be
requested by the committee or administrator and approved by resolution
of the board of supervisors. Any such advance shall be repaid as soon as
moneys are available therefor, but in no event later than the close of
the calendar year succeeding the calendar year in which the advance was
made. However, any such advance may be repaid not later than the close
of the second calendar year succeeding the calendar year in which such
advance was made, when made during such calendar year at a time
subsequent to the preparation of the estimate by the committee or
administrator for the succeeding calendar year.
Reserve. 1. The board of supervisors in connection with a plan
may by local law establish a self-insurance reserve. Such local law
shall prescribe the maximum amount which may be contributed to any such
reserve.
2. The committee or administrator may at any time in its or his
discretion expend moneys in such reserve to pay any liability of the
plan.
3. The committee or administrator may direct the county treasurer to
invest moneys in any such reserve in the manner prescribed by section
eleven of the general municipal law.
4. In the event of abandonment of a plan, all moneys remaining in such
reserve in excess of an amount sufficient to satisfy all accrued and
contingent liabilities, shall be refunded to the participants in such
manner as may be provided by local law adopted by the board of
supervisors.
Excess or catastrophe insurance; public group self-insurance
plans. 1. The committee or administrator, subject to the approval of the
board of supervisors, may on behalf of the plan purchase excess or
catastrophe insurance. The cost of such insurance shall be an
administrative expense of the plan.
2. The committee or administrator, subject to the approval of the
board of supervisors, may on behalf of the plan join a public group
self-insurer established under subdivision three-a of section fifty of
this chapter. Notwithstanding any other provision of this chapter, when
the committee or administrator contracts on behalf of the plan to join a
public group self-insurer:
a. the public group self-insurer, the county and each participant
shall remain liable in the manner provided in the plan for claims made
prior to the date on which the plan joins the public group self-insurer;
and
b. the committee or administrator shall establish, before the plan
joins the public group self-insurer, a method, which may be amended
annually thereafter, by which to apportion among the participants in the
plan the cost of its membership in the public group self-insurer and all
claims made after the date on which the plan joins the public group
self-insurer, and each participant in the plan shall pay its respective
share of the cost to the county treasurer, who shall pay the public
group self-insurer on behalf of all plan participants.
Accrual of liabilities. 1. Notwithstanding any other provision
of this article, a county may by local law provide for the operation of
a plan on an accrued liability basis whereby amounts charged to
participants shall be based on the estimated total liability of
participants actuarially computed, arising each year. A county also may
by local law provide for the operation of a plan on an experience rating
basis, whereby amounts charged to participants shall be based either
partially or totally on the past liability of participants. Once
adopted, an accrued liability basis or an experience rating basis shall
not thereafter be discontinued.
2. If a county elects to operate its plan on an experience rating
basis, the chief elected official of such county shall create and
appoint a labor-management safety committee. The purposes of the
committee shall be to educate public employees of the plan participants
in proper health and safety procedures in the work places of the
participants, and to design such additional programs as may be
appropriate to the development of a safe working environment in
participants' facilities and job sites. The committee shall accomplish
these purposes by establishing and maintaining such employee safety and
health programs as it deems appropriate and by publicizing the
availability of such programs. The purposes and powers of the committee
may be expanded by the county by adopting rules and regulations pursuant
to section sixty-five of this chapter.
3. The committee, which shall be appointed by the chief elected
official, shall be comprised of an equal number of employer and employee
representatives consisting of not less than three nor more than five
representatives each of the employer and of the employees, respectively.
The participants in the plan shall submit to the chief elected official
a list of candidates for the labor-management safety committee. In cases
in which employee organizations recognized or certified to represent
employees of the participants pursuant to article fourteen of the civil
service law exist, such recognized or certified employee organizations
shall submit a list of employee candidates for the labor-management
safety committee to the chief elected official. The chief elected
official shall create the committee from the lists of candidates so
submitted. The chief elected official, or person designated by him,
shall act as the chairperson of the committee, but shall not be entitled
to vote on any committee business. The members of the committee shall
serve without salary, but shall be entitled to reimbursement for
reasonable and necessary expenses incurred in the performance of their
official duties pursuant to this section. The committee shall meet at
least four times a year, with at least one meeting in each calendar
quarter. The chairperson shall designate the dates of the meeting, and
shall give at least ten days written notice to each committee member of
each meeting. The costs and expenses of the committee and its health and
safety programs shall be an administrative expense of the plan.
4. A recognized or certified employee organization may file a
grievance in writing with the chief elected official of the county
alleging that the county is not complying with subdivision two or three
of this section. The grievance shall designate in detail the particulars
in which the employee organization alleges the county has failed to
comply with either or both such subdivisions. The chief elected official
shall answer the grievance in writing within fifteen days of its filing.
5. If such answer is unsatisfactory to the employee organization, or
is not received by the employee organization within fifteen calendar
days, then the employee organization may submit the grievance to
arbitration. In such event the employee organization shall request in
writing a list of three arbitrators from the nearest regional office of
the American arbitration association. The association shall compile and
send a copy of such list to each party. Each party shall rank the
arbitrators in order of decreasing preference from one to three and
shall return the marked list within ten calendar days of receipt to the
regional office of the American arbitration association from which the
list was requested. Such office shall then determine the arbitrator most
acceptable to both parties.
6. The arbitrator selected shall hear arguments from both parties and
from such additional witnesses as the arbitrator deems necessary to
assist in rendering a decision. Within thirty days of such hearing the
arbitrator shall render a decision which shall be final and binding on
both parties.
Annual report. The county treasurer shall annually make a
financial report of the plan to the state comptroller as of the close of
the calendar year. Such reports shall be in such form and contain such
information as may be prescribed by the state comptroller. All reports
shall be duly verified and shall be filed with the state comptroller
within sixty days after the close of the calendar year. A copy of such
report shall within the same time be transmitted to the clerk of the
board of supervisors and to each participant in the plan.
Abandonment of plan. The board of supervisors of a county may by
local law provide for the abandonment of a plan, effective as of the
close of the calendar year then in progress. Such plan, however, shall
continue to operate thereafter until all liabilities of the plan
incurred prior to such effective date shall have been satisfied and all
advances to the county self-insurance fund shall have been repaid. Such
local law shall provide a method for the distribution of any assets of
the plan remaining after all such liabilities have been satisfied. The
provisions of this section shall not apply to any plan abandoned
pursuant to section sixty-one of this chapter. At the discretion of the
chair, the board of supervisors of a county may execute an assumption of
workers' compensation liability insurance policy securing such further
and future contingent liability as may arise from prior injuries to
workers and be incurred by reason of any change in the condition of such
workers warranting the board making subsequent awards for payment of
additional compensation. Such policy shall be in a form approved by the
superintendent of financial services and shall be issued by the state
fund or any insurance company licensed to issue this class of insurance
in this state. In the event that such policy is issued by an insurance
company other than the state fund, then said policy shall be deemed to
be of the kind specified in paragraph fifteen of subsection (a) of
section one thousand one hundred thirteen of the insurance law and
covered by the workers' compensation security fund as created and
governed by article six-A of this chapter. It shall only be issued for a
single complete premium payment in advance by the county, city, village,
town, school district, fire district or other political subdivision of
state and in an amount deemed acceptable by the chair and the
superintendent of financial services. In lieu of the applicable premium
charge ordinarily required to be imposed by a carrier, said premium
shall include a surcharge in an amount to be determined by the chair to
satisfy all assessment liability due and owing to the board and/or the
chair under this chapter. Said surcharge shall be payable to the board
simultaneous to the execution of the assumption of workers' compensation
liability insurance policy. However, the payment of said surcharge does
not relieve the carrier from any other liability, including liability
owed to the superintendent of financial services pursuant to article
six-A of this chapter. When issued such policy shall be non-cancellable
without recourse for any cause during the continuance of the liability
secured and so covered.
Manner of adoption of local laws. A local law authorized by this
article shall be adopted in the manner prescribed in the municipal home
rule law, or, in the case of a county operating under an alternative
form of county government, in the manner provided for such county for
the adoption of local laws. Notwithstanding any general, special or
local law, a local law adopted pursuant to this article shall not be
subject to a mandatory or permissive referendum.
Transition provisions. 1. Existing plans continued.
a. Notwithstanding the effective date of this article, plans
heretofore established pursuant to former subdivision three-a of section
fifty of this chapter and not abandoned pursuant to the provisions of
section sixty-one of this chapter, shall continue to operate subject to
the provisions of such subdivision through December thirty-first,
nineteen hundred fifty-six, with the same force and effect as if such
subdivision had not been repealed; provided, however, that no
apportionment shall be made thereunder during the year nineteen hundred
fifty-six, and provided further, that unless a committee or
administrator is appointed pursuant to the provisions of section
sixty-four of this chapter prior to August first, nineteen hundred
fifty-six, the committee managing the plan pursuant to former
subdivision three-a of section fifty of this chapter shall prepare the
estimate and make the apportionments provided for in paragraph b of this
subdivision.
b. The committee or administrator shall, during the month of August,
nineteen hundred fifty-six, prepare an estimate of the several amounts
necessary for the operation of the plan under this article for the year
nineteen hundred fifty-seven as provided in section sixty-seven of this
chapter, except that such estimate shall not provide for the repayment
of any advances made by the county. The committee or administrator shall
then determine the share of such amounts chargeable to each participant
in the manner prescribed by section sixty-six of this chapter. The
amounts so apportioned shall be collected in the same manner and at the
same time as provided in section sixty-seven of this chapter.
c. Except in the county of Wayne, the committee or administrator
shall, during the month of January, nineteen hundred fifty-seven,
determine the total amount due the county for advances made to the plan
prior to January first, nineteen hundred fifty-seven. All moneys of the
plan as of December thirty-first, nineteen hundred fifty-six, shall be
applied to the repayment of all such advances. If such moneys shall be
insufficient for such purpose, such an amount as may be necessary to
repay the balance of such advances shall be apportioned to each
participant in the plan as of such date in the manner provided in former
subdivision three-a of section fifty of this chapter. Each such
participant shall be notified in writing not later than the fifteenth
day of February, nineteen hundred fifty-seven, of the amount so
apportioned as such participant's share. Each such participant shall pay
the county treasurer such amount by October first, nineteen hundred
fifty-seven. If not paid on or before such date, such amount shall be
recovered by an action brought by the county or such amount shall be
collected by inclusion in the next succeeding tax levy, if any, against
property taxable by the participant responsible therefor. Any such
participant may provide all or part of such amount by the issuance of
bonds or capital notes pursuant to the local finance law. All
repayments of advances shall be credited by the county treasurer to the
fund from which such advances were made.
d. Any moneys of the plan as of December thirty-first, nineteen
hundred fifty-six, remaining after the repayment of all advances as
provided in paragraph c of this subdivision, shall be applied to the
payment of liabilities or may be credited to a reserve established
pursuant to section sixty-nine of this chapter.
2. Existing plans abandoned. a. Notwithstanding the effective date of
this article, plans heretofore established pursuant to former
subdivision three-a of section fifty of this chapter which are deemed
abandoned under the provisions of section sixty-one of this chapter,
shall continue to operate subject to the provisions of such former
subdivision through October thirty-first, nineteen hundred fifty-six,
with the same force and effect as if such former subdivision had not
been repealed; provided, however, that a committee appointed as provided
in such former subdivision shall continue in existence until such time
as all joint liabilities of the participants have been satisfied.
b. During the month of November nineteen hundred fifty-six, such
committee shall determine (1) the amount necessary to repay all advances
from the county and (2) the amount, actuarially computed, necessary to
satisfy all outstanding joint liabilities of the participants. The
committee shall then determine the share of such amounts chargeable to
each participant in the plan in the manner prescribed by former
subdivision three-a of section fifty of this chapter. The amounts so
apportioned shall be collected in the same manner and at the same time
as provided in such former subdivision. All moneys collected pursuant
to this subdivision, after the repayment of advances, shall be accounted
for by the county treasurer in the workmen's compensation mutual fund.
Disbursements from such fund shall be made upon the order of the
committee.
c. If at any time thereafter there shall be insufficient funds to meet
such liabilities, the committee shall in like manner apportion and cause
to be collected from each participant in the plan as of the date of
abandonment, the amount necessary to satisfy such liabilities. The
equalized valuations used as a basis for any such apportionment shall be
those existing as of the date of abandonment.
In a county which has established the office of county auditor
the board of supervisors may by resolution place all duties of
administration upon such auditor. This provision shall apply to all such
plans whether established under this article or under former subdivision
three-a of section fifty of this act.
ARTICLE 6 State Insurance Fund
Creation of state fund. 1. There is hereby continued in the
department of labor a fund known as "the state insurance fund", for the
purpose of insuring employers against liability for personal injuries or
death sustained by their employees, including liability other than
liability assumed by contract imposed upon employers by reason of a suit
or claim brought against the employer by another to recover the amount
of damages obtained from such other by an employee of the employer for
injuries or in case of death by his dependents for death sustained by
such employee arising out of and in the course of his employment and to
pay such damages, and of assuring to the persons entitled thereto the
compensation and benefits provided by this chapter or by any act
providing for compensation now or hereafter enacted by the congress of
the United States of America if such liability is incident to an
employment carried on in this state, and every such payment shall
constitute an element of loss for the purpose of establishing premium
rates. Such fund shall consist of all premiums received and paid into
the fund, of property and securities acquired by and through the use of
moneys belonging to the fund and of interest earned upon moneys
belonging to the fund and deposited or invested as herein provided. Such
fund shall be applicable to the payment of losses sustained on account
of insurance, to the payment of expenses in the manner provided in this
chapter and to the payment of premiums for reinsurance in any insurance
corporation of the whole or any part of any policy obligations.
1-a. a. The purposes of the state insurance fund are hereby enlarged
to permit it to enter agreements with insurers licensed to write
workers' compensation insurance in states outside New York to issue
policies to state insurance fund policyholders covering those
policyholders' obligations to secure the payment of workers'
compensation benefits under the laws of states other than New York. The
state insurance fund shall also be authorized to receive premiums into
its workers' compensation fund for policies written under such
agreements and to pay from such fund: (i) reimbursement of all losses
and loss adjustment expenses under such policies; and (ii) fees and
other costs, including but not limited to those for claims services,
relating to such agreements. An agreement under this subdivision shall
not include the provision of claims services for any claim under this
chapter.
b. For a policyholder to be eligible for insurance in states other
than New York provided through agreements entered into under this
subdivision, either: (i) the policyholder's workers' compensation
premiums with the state insurance fund covering its employees under this
chapter must be greater than the premiums charged to cover the
policyholder's obligations to pay workers' compensation benefits in all
states, in the aggregate, other than New York when covered under such
agreements; or (ii) the payroll for the policyholder's operations in New
York must be greater than the policyholder's payroll in all states, in
the aggregate, other than New York when covered under such agreements
for the prior policy period. For determining eligibility, "premiums"
mean estimated premiums as determined by the state insurance fund at the
beginning of the policy period. In addition, for a policyholder to be
eligible for insurance in states other than New York through the state
insurance fund, the policyholder must meet the state insurance fund's
underwriting criteria for other states coverage as specified by rules of
the commissioners.
2. The purposes of the state insurance fund herein created are hereby
enlarged to provide insurance for the payment of the benefits required
by section two hundred four of this chapter including benefits for
family leave. A separate fund is hereby created within the state
insurance fund, which shall be known as the "disability benefits fund",
and which shall consist of all premiums received and paid into said fund
on account of such insurance, all securities acquired by and through the
use of moneys belonging to said fund and of interest earned upon moneys
belonging to said fund and deposited or invested as herein provided.
Said disability benefits fund shall be applicable to the payment of
benefits, expenses and assessments on account of insurance written
pursuant to article nine of this chapter. Premiums for policies
providing disability and family leave benefits in accordance with this
article shall be calculated in accordance with applicable provisions of
the insurance law, including subsection (n) of section four thousand two
hundred thirty-five of such law. The state insurance fund shall have
authority to discount or surcharge on established premium rates based on
sound actuarial principles.
2-b. The purposes of the state insurance fund created in this section
are hereby enlarged to provide for the insurance by the state insurance
fund of the payment of the benefits required by section one hundred
sixty-ddd of the executive law.
3. The respective assets and liabilities of the workers' compensation
and disability benefits funds provided in this section shall be and
remain separate except that advances may be made from either fund for
the payment of benefits and for administrative expenses, subject to
annual reimbursement.
Whenever used in this article the terms "state insurance fund", "state
fund" and "fund" shall be deemed to include both the workers'
compensation fund and the disability benefits fund unless the context
otherwise indicates.
4. The purposes of such state insurance fund are hereby further
enlarged to permit it to furnish to self-insurers, as defined in
subdivision three of section fifty of this chapter, representation and
services of the nature specified in paragraph five of subsection (a) of
section one thousand six hundred one of the insurance law and
subdivision three-d of section fifty of this chapter.
5. No monies of the state insurance fund shall be transferred to any
other fund, nor shall any such monies be applied to the making of any
payment for any purpose other than the purposes set forth in this
article.
Administration. The state insurance fund shall be administered
by the commissioners of the state insurance fund, of whom there shall be
ten. The commissioner of labor shall, in addition, be a commissioner of
such fund by virtue of his or her office. The commissioners shall elect
annually from the appointive members a chair and a vice-chair who shall
act as chair in the absence of the chair. The commissioner of labor may
designate a deputy commissioner to act in his or her place and stead as
a commissioner of such fund. The commissioners shall be appointed by the
governor, by and with the advice and consent of the senate. One
commissioner shall be appointed by the governor upon recommendation by
the New York State American Federation of Labor-Congress of Industrial
Organizations, and one commissioner shall be appointed by the governor
upon recommendation of the Business Council of the State of New York.
They shall be policyholders insured in the state insurance fund. The
commissioners shall be appointed for terms of three years each. They
shall serve until their successors are appointed and have qualified.
Vacancies shall be filled for the unexpired terms. Each commissioner
shall before entering upon his or her duties, take and subscribe the
constitutional oath of office which shall be filed in the office of the
secretary of state.
Salaries and expenses. The commissioners shall not receive a
salary or other compensation, but shall receive their actual and
necessary traveling and other expenses incurred in connection with their
attendance upon meetings or the business of the fund, which shall be
paid out of the fund upon the warrant of the chairman of the
commissioners or of the vice-chairman.
Meetings. The commissioners shall meet at least once in each
month, except the month of August, and at such other times as they may
determine or the business of the fund may require. Special meetings may
be called by the industrial commissioner upon five days' notice, and may
also be called by any two commissioners upon like notice. Minutes shall
be kept of all regular and special meetings, and shall show the names of
the commissioners attending, and each matter brought before the
commissioners for their consideration together with the vote of each
commissioner thereon. The secretary shall be the custodian of the
minutes and records thereof, and shall perform such other duties and
have such other administrative powers as may be assigned to him by the
commissioners.
Seal. The commissioners shall adopt a seal and shall require it
to be used for the authentication of records and documents as may be
necessary and proper.
Offices, lands, leaseholds and buildings. The commissioners, any
law to the contrary notwithstanding, (a) may lease, sub-lease, rent or
otherwise hire, on behalf of and in the sole name of the state insurance
fund and under such terms and conditions and for such period or periods
not in excess of ninety-nine years as in the judgment of the
commissioners may seem to the best interests of the fund, suitable
premises in the city of New York and in the city of Albany, and maintain
offices therein, and may in the same manner establish and maintain other
offices at such places in the state as may be required to properly and
conveniently transact the business of the fund and (b) the commissioners
may in the name of the state insurance fund, subject to the approval of
the superintendent of financial services as provided in section
eighty-seven of this article, out of its surplus, (1) acquire by
purchase or acquire by gift or devise and hold and convey land with or
without buildings or improvements thereon, or acquire by purchase,
sub-lease, assignment, transfer, gift, devise or in any other manner and
hold and convey any lease, sub-lease or leasehold of real property and
for any term of years not in excess of ninety-nine years, and (2)
construct a new building or buildings on such land or leasehold or
reconstruct or operate and maintain existing buildings, as the case may
be, with facilities and appurtenances to provide suitable office space
for the convenient transaction of the business of the state insurance
fund; and (c) notwithstanding the provisions of any general, special or
local law, the commissioners are authorized to rent any available space
in such premises, buildings or property not required by the state
insurance fund to private tenants or to public agencies, with or without
leases, upon such terms and rentals as the commissioners deem to be for
the best interests of the state insurance fund. The commissioners may
manage and operate such properties or leaseholds either by forces and
equipment of the fund or, with the approval of the director of the
budget, by contracting for the management and operation of such
properties or leaseholds with any person, firm or corporation that they
shall select and that is engaged in such business but no such contract
shall be made for a period in excess of five years, or by a combination
of such methods. The commissioners may, from time to time, enter into
agreements modifying any lease or leasehold made or acquired as above
provided. The obligation of the state insurance fund or any lease made,
modified or acquired or on any contract entered into pursuant to this
section shall not be limited by any provisions of section eighty-eight
of this article or of section one hundred sixty-one-a of the state
finance law. The commissioners may sue and be sued in the name of the
state insurance fund in any form of action or proceeding on all matters
relating to ownership, management, operation and control of any such
land and buildings or leaseholds and on all matters relating to its
rights and obligations under any lease, sub-lease, renting or hiring of
any such land and buildings and to its possession thereof and removal
therefrom.
Powers and duties. 1. The commissioners shall appoint an
executive director, a general attorney, a secretary for terms of nine
years each. Vacancies in such positions shall be filled for the
unexpired terms. The commissioners shall also appoint, and may remove,
four deputy executive directors and an actuary. The foregoing
appointments shall be in the exempt class of the civil service. The
actuary shall be responsible directly to the commissioners. They shall
also appoint, and may remove, such number of assistant directors as may
in their judgment be required for the proper and expeditious conduct of
the business of the fund. In the absence of the executive director the
deputy executive director named for that purpose by the commissioners
shall perform the duties of the executive director. The commissioners
shall prescribe the duties of all administrative officers of the fund,
except as they may otherwise be prescribed by law.
2. The executive director shall, subject to the direction of the
commissioners, be responsible for the direction and operation of the
state fund. He shall appoint, and may remove, all officers and employees
of the fund, other than those required to be appointed by the
commissioners, and shall prescribe their duties. He may within the
limits of the budget fix salaries, and may promote employees and may
transfer employees from their positions to other positions in the fund,
and may abolish or consolidate positions subject to the civil service
law and rules, and all removals shall be made pursuant to such rules and
laws, it being the purpose and intent of this provision that the state
fund shall at all times be administered with due regard to the
requirements of its business affairs and its obligations under its
contracts and policies in force.
3. The commissioners shall consider at all times the condition of the
fund and examine into its reserves, investments and all other matters
relating to its administration. They shall have access to all records
and books of account, and may require the personal appearance before
them and require information from any officer or employee of the fund.
Information obtained by them from officers and employees of the fund and
from its records with respect to the business affairs of any employer
insured in the fund shall be deemed confidential unless ordered
disclosed by order of the commissioners.
4. The executive director shall submit to the commissioners an annual
estimate of the amounts required for salaries and for the maintenance
and expenses of the fund for the next ensuing calendar year. The
commissioners shall thereupon consider such estimate, and may modify or
approve such estimate. There may not be expended for the state insurance
fund more than the total amount specified in such budget, except as
authorized by the commissioner.
5. All statistics and other documentary matter filed with the state
fund, except where the further retention of such statistics and other
documentary matter is made necessary by requirements of law, may be
destroyed by the commissioners after the expiration of six years from
the filing thereof.
Rules. The commissioner shall adopt rules for the conduct of the
business of the state fund, and may from time to time alter, amend or
repeal any rule therefore adopted. At least six affirmative votes shall
be required for the adoption of any rule, or the amendment or repeal of
any rule. No rule, and no resolution proposing to alter, amend or repeal
any rule, shall be effective unless approved by the commissioner of
labor. If the commissioner of labor fails to act upon any such rule or
resolution within thirty days after it is communicated to him or her,
such rule or resolution shall be deemed to have been approved.
The rules of the commissioners shall provide for the conduct of the
business of the state insurance fund, including the issuance of policies
and their terms and conditions, the fixing of premium rates, the keeping
of records, auditing of payrolls, and the billing and collection of
premiums therefor, the inspection of risks and the setting of the
standards of safety, the adjustment and payment of claims and awards,
and the investigation of all matters relating thereto, the medical
examination of persons claiming compensation and the furnishing and
supervision of medical and surgical treatment to persons injured as set
forth in this chapter, the conduct of the legal business of the fund and
the enforcement of the subrogated rights of the fund against third
parties, the investment of the surplus and reserves of the fund, and the
collection and analysis of statistics of payrolls, premiums, losses and
expenses and the actuarial consideration thereof.
General attorney. There shall be a general attorney of the state
fund. He shall have such legal and other assistants as may be required,
within the limits set forth in the budget.
It shall be the duty of the general attorney to advise the
commissioners and the management of the fund upon all matters of law
arising in connection with any contract or policy of insurance issued by
the fund, and upon any claim or award of compensation. He shall appear
as the attorney of record in all suits and other proceedings to which
the state fund or the commissioners thereof are parties. He shall
conduct all appeals on behalf of employers insured in the fund and on
behalf of the fund itself, except where there is a divergence of
interest between the employer and the fund, in which case he shall
appear on behalf of the fund alone. He shall prosecute all claims
against third parties under the subrogated rights of the state fund, in
accordance with the provisions of section twenty-nine of this chapter.
He shall have the right, subject to the approval of the commissioners,
to employ special counsel in matters involving special difficulty, and
to provide for the payment of their compensation and expenses out of the
state fund.
Commissioner of taxation and finance custodian of fund. The
commissioner of taxation and finance shall be the custodian of the state
insurance fund; and all disbursements therefrom shall be paid by him
upon drafts signed by the executive director, deputy executive director
or an assistant director authorized for that purpose by the
commissioners or by checks signed by one of such officers and by the
commissioner of taxation and finance. He may deposit any portion of the
state fund not needed for immediate use, in the manner and subject to
all the provisions of law respecting the deposit of other state funds by
him. Interest earned by such portion of the state insurance fund
deposited by him, shall be collected by him and placed to the credit of
the fund.
Catastrophe surplus and reserves for workers' compensation. Ten
per centum of the premiums collected from employers insured in the fund
for workers' compensation shall be set aside for the creation of a
surplus until such surplus shall amount to the sum of one hundred
thousand dollars, and thereafter five per centum of such premiums, until
such time as in the judgment of the commissioners such surplus shall be
sufficiently large to cover the catastrophe hazard. Thereafter the
contribution to such surplus may be reduced or discontinued conditional
upon constant maintenance of a sufficient surplus to cover the
catastrophe hazard. Reserves shall be set up and maintained adequate to
meet anticipated losses and carry all claims and policies to maturity,
which reserves shall be computed to reflect the present values, at five
percent interest per annum, of the determined and estimated unpaid
losses, and other requirements computed in accordance with such rules as
shall be approved by the superintendent of financial services.
Catastrophe surplus and reserves for disability benefits.
Subject to such rules as shall be approved by the superintendent of
financial services, there shall be set aside out of the premiums paid
into the disability benefits fund an amount sufficient to provide
against catastrophe and epidemics and reserves to meet anticipated
losses and carry all claims to maturity.
Investment of surplus or reserve. 1. Any of the reserve funds
belonging to the state insurance fund, by order of the commissioners,
approved by the superintendent of financial services, may be invested in
the types of securities described in subdivisions one, two, three, four,
five, six, eleven, twelve, twelve-a, thirteen, fourteen, fifteen,
nineteen, twenty, twenty-one, twenty-one-a, twenty-four, twenty-four-a,
twenty-four-b, twenty-four-c and twenty-five of section two hundred
thirty-five of the banking law or in paragraph two of subsection (a) of
section one thousand four hundred four of the insurance law except that
up to five percent of such reserve funds may be invested in the
securities of any solvent American institution as described in such
paragraph irrespective of the rating of such institution's obligations
or other similar qualitative standards described therein.
2. Any of the surplus funds belonging to the state insurance fund, by
order of the commissioners, approved by the superintendent of financial
services, may be invested in the types of securities described in
subdivisions one, two, three, four, five, six, eleven, twelve, twelve-a,
thirteen, fourteen, fifteen, nineteen, twenty, twenty-one, twenty-one-a,
twenty-four, twenty-four-a, twenty-four-b, twenty-four-c and twenty-five
of section two hundred thirty-five of the banking law or, up to fifty
percent of surplus funds, in the types of securities or investments
described in paragraphs two, three, eight and ten of subsection (a) of
section one thousand four hundred four of the insurance law, except that
up to ten percent of surplus funds may be invested in the securities of
any solvent American institution as described in such paragraphs
irrespective of the rating of such institution's obligations or other
similar qualitative standards described therein, and up to fifteen
percent of surplus funds in securities or investments which do not
otherwise qualify for investment under this section as shall be made
with the care, prudence and diligence under the circumstances then
prevailing that a prudent person acting in a like capacity and familiar
with such matters would use in the conduct of an enterprise of a like
character and with like aims as provided for the state insurance fund
under this article, but shall not include any direct derivative
instrument or derivative transaction except for hedging purposes.
Notwithstanding any other provision in this subdivision, the aggregate
amount that the state insurance fund may invest in the types of
securities or investments described in paragraphs three, eight and ten
of subsection (a) of section one thousand four hundred four of the
insurance law and as a prudent person acting in a like capacity would
invest as provided in this subdivision shall not exceed fifty percent of
such surplus funds.
3. Any of the surplus or reserve funds belonging to the state
insurance fund, upon like approval of the superintendent of financial
services, may be loaned on the pledge of any such securities. The
commissioners, upon like approval of the superintendent of financial
services, may also sell any of such securities or investments.
4. (a) Any securities belonging to the state insurance fund may, by
order of the commissioners, approved by the superintendent of financial
services, be loaned under a security loan agreement, as defined in
paragraph (b) of this subdivision, entered into with a registered
broker-dealer, or a New York state or national bank or trust company,
with the custodial bank of the state insurance fund or another person or
entity, approved by the commissioner of taxation and finance, which
specializes in security loan transactions acting as the agent in
arranging such agreement. The commissioners shall monitor the market
value of the loaned securities daily. In no event shall the
commissioners allow the value of the collateral posted to fall below the
market value of the loaned securities.
(b) For purposes of this section, "security loan agreement" shall mean
a written contract, the terms of which have been approved by the
commissioner of taxation and finance, whereby the state insurance fund
(the lender) agrees to lend securities to a broker-dealer, bank or trust
company described in paragraph (a) of this subdivision (the borrower)
for a period not to exceed one year. However, such agreement shall be
subject to the following limitations: (i) the lender must retain the
right to collect from the borrower all dividends, interest, premiums,
rights, and any other distributions to which the lender would otherwise
have been entitled; (ii) the lender may waive the right to vote the
securities during the term of such agreement; (iii) the lender must
retain the right to terminate such agreement upon not more than five
business days' notice; (iv) the borrower shall provide as collateral to
the lender cash or direct obligations of the United States of America or
any agency or instrumentality thereof or obligations fully guaranteed by
the United States of America that are eligible for investment by the
state insurance fund under subdivision one of this section, provided
that such obligations may in no event consist of derivative securities;
and (v) such agreement shall provide for payment of additional
collateral on a daily basis, or at such time as the value of the loaned
securities increases to agreed upon ratios.
5. All such securities or evidences of indebtedness shall be placed in
the hands of the commissioner of taxation and finance who shall be the
custodian thereof. He or she shall collect the principal and interest
thereof, when due, and pay the same into the state insurance fund. The
commissioner of taxation and finance shall pay all vouchers drawn on the
state insurance fund for the making of such investments when signed by
the chair of the commissioners, the executive director or a deputy
executive director of the state insurance fund upon delivery of such
securities or evidences of indebtedness to him or her, when there is
attached to such vouchers the approval of the state superintendent of
financial services.
6. For the purposes of this section, the term "reserves" does not
include the estimated value of future discretionary payments that may be
made by the state insurance fund under section ninety of this article.
7. Notwithstanding any provision in this section, the surplus and
reserve funds of the state insurance fund shall not be invested in any
investment that has been found by the superintendent of financial
services to be against public policy or in any investment prohibited by
the provisions of paragraph six of subsection (a) of section one
thousand four hundred four of the insurance law or by the provisions of
paragraph one, two, three, four, six, eight, nine or ten of subsection
(a) of section one thousand four hundred seven of the insurance law.
Investment in obligations of the municipal assistance
corporation for the city of New York; indemnification. 1. The state
insurance fund, and all state officers with responsibility for the
custody or investment thereof, are authorized and directed to take any
and all actions necessary or appropriate to cause such fund to make
purchases as soon as possible, in accordance with a schedule to be
established by the New York state emergency financial control board, but
in no event later than December first, nineteen hundred seventy-five, of
bonds of the municipal assistance corporation for the city of New York
in the aggregate principal amount of one hundred million dollars,
provided, however, that at the date of any such purchase the city of New
York has not defaulted in the payment of any of its outstanding bonds or
notes. The terms and conditions of such bonds, including the rates of
interest thereon, shall be determined by the municipal assistance
corporation for the city of New York, after consultation with the
commissioners of the fund, provided such terms and conditions are found
to be fair and reasonable by the New York state emergency financial
control board.
2. It is hereby found and declared that obligations of the municipal
assistance corporation for the city of New York are reasonable, prudent,
proper and legal investments for the state insurance fund or for any
state officer with custody or responsibility for the investment of the
assets thereof.
3. Notwithstanding any other provision of law, including the
provisions of section seventeen of the public officers law, no state
officer with custody or responsibility for the investment of the assets
thereof shall incur or suffer any liability whatsoever to any person
beneficially interested in such system by reason of actions taken
pursuant to the authorization and direction of subdivision one and such
fund shall save harmless and indemnify all such officers and any
investment advisors from financial loss arising out of any claim,
demand, suit, action or judgment for alleged negligence, waste or breach
of fiduciary duty by reason of any investment of any monies of the state
insurance fund in obligations of the municipal assistance corporation
for the city of New York provided that such person shall, within five
days after the date on which he is served with any summons, complaint,
process, notice, demand, claim or pleading, deliver the original or a
true copy thereof to the legal advisor of such system. Upon such
delivery the legal advisor of the state insurance fund may assume
control of the representation of such person in connection with such
claim, demand, suit, action or proceeding. Such person shall cooperate
fully with the legal advisor of the system or any other person
designated to assume such defense in respect of such representation or
defense.
4. In order to obtain the funds necessary to purchase the bonds
required by this chapter, the commissioners of the state insurance fund
in accordance with rules and regulations adopted by such commissioners
shall have the right to borrow an amount not exceeding the obligation
incurred by such fund pursuant to this chapter and to pledge as
collateral therefor such assets as they may deem advisable.
Investments in obligations of the city of Yonkers;
indemnification. 1. The state insurance fund, and all state officers
with responsibility for the custody or investment thereof, are
authorized and directed to take any and all actions necessary or
appropriate to cause such fund to make purchases as soon as possible,
but in no event later than December first, nineteen hundred
seventy-five, of obligations of the city of Yonkers in the aggregate
principal amount of fifteen million dollars, provided, however, that at
the date of any such purchase the city of Yonkers has not defaulted in
the payment of any of its outstanding bonds or notes. The terms and
conditions of such obligations, including the rates of interest thereon,
shall be determined by the city of Yonkers, after consultation with the
commissioners of the fund, provided such terms and conditions are found
to be fair and reasonable by the state comptroller.
2. It is hereby found and declared that obligations of the city of
Yonkers are reasonable, prudent, proper and legal investments for the
state insurance fund or for any state officer with custody or
responsibility for the investment of the assets thereof.
3. Notwithstanding any other provision of law, including the
provisions of section seventeen of the public officers law, no state
officer with custody or responsibility for the investment of the assets
thereof shall incur or suffer any liability whatsoever to any person
beneficially interested in such system by reason of actions taken
pursuant to the authorization and direction of subdivision one and such
fund shall save harmless and indemnify all such officers and any
investment advisors from financial loss arising out of any claim,
demand, suit, action or judgment for alleged negligence, waste or breach
of fiduciary duty by reason of any investment of any monies of the state
insurance fund in obligations of the city of Yonkers provided that such
person shall, within five days after the date on which he is served with
any summons, complaint, process, notice, demand, claim or pleading,
deliver the original or a true copy thereof to the legal advisor of such
system. Upon such delivery the legal advisor of the state insurance fund
may assume control of the representation of such person in connection
with such claim, demand, suit, action or proceeding. Such person shall
cooperate fully with the legal advisor of the system or any other person
designated to assume such defense in respect of such representation or
defense.
4. In order to obtain the funds necessary to purchase the bonds
required by this chapter, the commissioners of the state insurance fund
in accordance with rules and regulations adopted by such commissioners
shall have the right to borrow an amount not exceeding the obligation
incurred by such fund pursuant to this chapter and to pledge as
collateral therefor such assets as they may deem advisable.
Investments in obligations of the city of Yonkers;
indemnification (1984). 1. The state insurance fund, and all state
officers with responsibility for the custody or investment of such fund
or of its assets, are authorized and directed to take any and all
actions necessary or appropriate to cause such fund to make purchases as
soon as possible, but in no event later than September first, nineteen
hundred eighty-eight, of obligations of the city of Yonkers or renewals
or refundings of obligations previously purchased by such fund, in the
aggregate principal amount of ten million dollars, provided, however,
that at the date of any such purchase the city of Yonkers has not
defaulted in the payment of any of its outstanding bonds or notes.
Notwithstanding any limitations on the private sale of bonds provided by
law, such city may sell bonds to such fund by private sale. The terms
and conditions of such obligations, including the terms of purchase and
maturities thereof, and the rates of interest thereon, shall be
determined by the city of Yonkers, provided such terms and conditions
are found to be fair and reasonable by the New York state emergency
financial control board for the city of Yonkers and the superintendent
of financial services.
2. It is hereby found and declared that any and all obligations of the
city of Yonkers are reasonable, prudent, proper and legal investments
for the state insurance fund and for all state officers with
responsibility for the custody or investment of such fund or of its
assets.
3. In order to obtain the funds necessary to make the purchases
required by subdivision one of this section, the state insurance fund,
and all state officers with responsibility for the custody or investment
of such fund or of its assets, are authorized and directed to take any
and all actions necessary or appropriate to cause such fund to sell
securities owned by the fund or to borrow an amount not exceeding the
obligation incurred by such fund pursuant to this section and to pledge
as collateral therefor such assets, on such terms and conditions as are
found to be fair and reasonable by the state superintendent of financial
services.
4. Notwithstanding any other provision of law, no state officer with
responsibility for the custody or investment of the state insurance fund
or of its assets, or for the approval of the sale or investment of such
assets, nor any investment advisor, attorney, accountant or actuary who
shall have been employed by or shall have advised such officer, shall
incur or suffer any liability whatsoever to any person by reason of
actions taken pursuant to the authorization and direction of subdivision
one or three of this section. Any action which could have been brought
against any aforementioned state officer, investment advisor, attorney,
accountant or actuary, except for the provisions of this subdivision,
may be brought against the state insurance fund.
5. a. Notwithstanding any other provision of law, including the
provisions of section seventeen of the public officers law, the state
insurance fund and the state, jointly and severally, shall save harmless
and indemnify each and every state officer with responsibility for the
custody or investment of such fund or of its assets or for the approval
of the sale or investment of such assets, and any investment advisor,
attorney, accountant or actuary who shall have been employed by or who
shall have advised such officer, and the state shall save harmless and
indemnify the state insurance fund, from any and all financial loss and
expense arising out of or in connection with any claim, demand, suit,
action, proceeding or judgment for alleged negligence, gross negligence,
waste or breach of fiduciary duty, or incapacity of any kind by reason
of any transaction pursuant to the authorization and direction of
subdivision one or three of this section, provided that such officer,
investment advisor, attorney, accountant or actuary shall, within
fifteen days after the date on which he is personally served with, or
receives actual notice of, any summons, complaint, process, notice,
demand, claim or pleading, give notice thereof to such fund or the
attorney general. Upon such notice the state insurance fund and the
attorney general shall, if so requested, assume control of the
representation of such officer or investment advisor, attorney,
accountant or actuary, in connection with such claim, demand, suit,
action or proceeding. Each person so represented shall cooperate fully
with the fund and the attorney general or any other person designated to
assume such defense in respect of such representation or defense.
b. Notwithstanding any provision of law to the contrary, the state
shall also save harmless and indemnify the state insurance fund for any
and all financial loss and expense arising out of or in connection with
any claim, demand, suit, action, proceeding or judgment rendered
thereupon against such fund pursuant to subdivision four hereof or by
reason of any transaction pursuant to the authorization and direction of
subdivision one or three of this section, provided that such fund shall,
within fifteen days after the date on which it is served with, or
receives actual notice of, any summons, complaint, process, notice,
demand, claim or pleading, give notice thereof to the attorney general.
Upon such notice the attorney general shall assume control of the
representation of such fund in connection with such claim, demand, suit,
action or proceeding. The fund shall cooperate fully with the attorney
general or any other person designated to assume such defense in respect
of such representation or defense.
Investments in obligations of designated public benefit
corporations; indemnifications. 1. The state insurance fund, and all
state officers with responsibility for the custody or investment of such
fund or of its assets, are authorized and directed to take any and all
actions necessary or appropriate to cause such fund to make purchases,
in accordance with a schedule to be established, subject to amendment
from time to time, by the state director of the budget in the aggregate
principal amount of two hundred eighty-three million dollars, of
obligations of any one or more of the following public benefit
corporations: the New York state housing finance agency, the New York
state medical care facilities finance agency, the dormitory authority
and the New York state environmental facilities corporation. Such
schedule may be amended from time to time to provide for the renewal,
refunding, redemption or repayment of notes purchased by the state
insurance fund in accordance with the schedule, or for the conversion of
such notes into bonds, provided that at no time shall the total
aggregate amount of obligations held by the state insurance fund
pursuant to the provisions of this section exceed two hundred
eighty-three million dollars. The terms and conditions of such
obligations, including the times of purchase and maturities thereof and
the rates of interest thereon, shall be determined by the public benefit
corporation issuing the obligations, provided such terms and obligations
are found to be fair and reasonable by the state superintendent of
financial services.
2. In order to obtain the funds necessary to make the purchases
required by subdivision one of this section, the state insurance fund,
and all state officers with responsibility for the custody or investment
of such fund or of its assets, are authorized and directed to take any
and all actions necessary or appropriate to cause such fund to sell all
United States government securities and all United States government
agency and instrumentality securities owned by the fund, on such terms
and conditions as are found to be fair and reasonable by the state
superintendent of financial services.
3. It is hereby found and declared that any and all obligations of the
New York state housing finance agency, the New York state medical care
facilities finance agency, the dormitory authority and the New York
state environmental facilities corporation, are reasonable, prudent,
proper and legal investments for the state insurance fund and for all
state officers with responsibility for the custody or investment of such
fund or of its assets.
4. Notwithstanding any other provision of law, no state officer with
responsibility for the custody or investment of the state insurance fund
or of its assets, or for the approval of the sale or investment of such
assets, nor any investment advisor, attorney, accountant or actuary who
shall have been employed by or shall have advised such officer, shall
incur or suffer any liability whatsoever to any person by reason of
actions taken pursuant to the authorization and direction of
subdivisions one or two of this section. Any action which could have
been brought against any aforementioned state officer, investment
advisor, attorney, accountant or actuary, except for the provisions of
this subdivision, may be brought against the state insurance fund.
5. a. Notwithstanding any other provision of law, including the
provisions of section seventeen of the public officers law, the state
insurance fund and the state, jointly and severally, shall save harmless
and indemnify each and every state officer with responsibility for the
custody or investment of such fund or of its assets or for the approval
of the sale or investment of such assets, and any investment advisor,
attorney, accountant or actuary who shall have been employed by or who
shall have advised such officer, and the state shall save harmless and
indemnify the state insurance fund, from any and all financial loss and
expense arising out of or in connection with any claim, demand, suit,
action, proceeding or judgment for alleged negligence, gross negligence,
waste or breach of fiduciary duty, or incapacity of any kind by reason
of any transaction pursuant to the authorization and direction of
subdivisions one or two of this section, provided that such officer,
investment advisor, attorney, accountant or actuary shall, within five
days after the date on which he is personally served with, or receives
actual notice of, any summons, complaint, process, notice, demand, claim
or pleading, give notice thereof to such fund or the attorney general.
Upon such notice the state insurance fund and the attorney general
shall, if so requested, assume control of the representation of such
officer or investment advisor, attorney, accountant or actuary, in
connection with such claim, demand, suit, action or proceeding. Each
person so represented shall cooperate fully with the fund and the
attorney general or any other person designated to assume such defense
in respect of such representation or defense.
b. Notwithstanding any provision of law to the contrary, the state
shall also save harmless and indemnify the state insurance fund for any
and all financial loss and expense arising out of or in connection with
any claim, demand, suit, action, proceeding or judgment rendered
thereupon against such fund pursuant to subdivision four hereof,
provided that such fund shall, within five days after the date on which
it is served with, or receives actual notice of, any summons, complaint,
process, notice, demand, claim or pleading, give notice thereof to the
attorney general. Upon such notice the attorney general shall assume
control of the representation of such fund in connection with such
claim, demand, suit, action or proceeding. The fund shall cooperate
fully with the attorney general or any other person designated to assume
such defense in respect of such representation or defense.
Contractual obligations as evidence of indebtedness upon
reimbursement of reserves. 1. a. Notwithstanding any other provision of
law the contrary, the state insurance fund, hereafter referred to as the
fund, and all state officers with responsibility for the custody or
investment of such fund or of its assets, are authorized and directed to
take any and all actions necessary or appropriate to cause such fund to
enter into an agreement, renewable on an annual basis, with the
department of civil service whereunder the state shall make advance
periodic payments to the fund for the payment to maturity of all
obligations under this chapter of the state as employer and the fund as
insurer with respect to injuries or deaths resulting from accidents
arising out of and in the course of employment occurring prior to April
first, nineteen hundred eighty-one.
b. The agreement shall provide that the fund shall segregate on an
actuarially sound basis any and all monies and assets held by it as
reserves for the payment of such obligations of the state under this
chapter, and pay to the state the aggregate amount thereof.
c. The agreement shall further provide that if at any time prior to
July first, nineteen hundred eighty-two, and at any time prior to the
termination of any twelve month period immediately succeeding such date
during which the agreement, or any renewal, is in effect, an amount
equal to the total amount in the aggregate determined by the fund to be
required to pay to maturity the obligations referred to in paragraph a
of this subdivision, has not been appropriated by the state for the
state fiscal year commencing April first, nineteen hundred eighty-two,
or any subsequent fiscal year during which the agreement provided for in
this subdivision, or any renewal thereof, is in existence, the
unliquidated amount of the agreement or the renewal, as computed on an
actuarially sound basis by the fund, required to pay in the aggregate
the remainder of such incurred obligations to maturity, shall be
immediately payable by the state to the fund from the funds appropriated
by the state and encumbered by the agreement or renewal.
2. It is hereby found and declared that the agreement provided for in
subdivision one of this section is an evidence of indebtedness, and as
such, it shall be deemed an asset of the state insurance fund, and a
proper and prudent legal undertaking for any state officer with the
responsibility for the custody or the investment of the assets of the
fund, notwithstanding any other provision of law to the contrary.
3. Notwithstanding any other provision of law, no state officer with
responsibility for the custody or investment of the state insurance fund
or of its assets, or for the execution of and the entering into the
agreement or any renewals, as required by subdivision one of this
section, nor any attorney, accountant or actuary who shall have been
employed by or shall have advised such officer, shall incur or suffer
any liability whatsoever to any person by reason of actions taken
pursuant to the authorization and direction of subdivision one of this
section. Any action which could have been brought against any
aforementioned state officer, attorney, accountant or actuary, except
for the provisions of this subdivision, may be brought against the state
of New York.
4. a. Notwithstanding any other provision of law, including the
provisions of section seventeen of the public officers law, the state
insurance fund and the state, jointly and severally, shall save harmless
and indemnify each and every state officer with responsibility for the
custody or investment of such fund or of its assets or for the execution
of and the entering into the agreement as required by subdivision one of
this section, and any attorney, accountant or actuary who shall have
been employed by or who shall have advised such officer, and the state
shall save harmless and indemnify the state insurance fund, from any and
all financial loss and expense arising out of or in connection with any
claim, demand, suit, action, proceeding or judgment for alleged
negligence, gross negligence, waste or breach of fiduciary duty, or
incapacity of any kind by reason of any transaction pursuant to the
authorization and direction of subdivision one or two of this section,
provided that such officer, attorney, accountant or actuary shall,
within five days after the date on which he is personally served with,
or receives actual notice of, any summons, complaint, process, notice,
demand, claim or pleading, give notice thereof to such fund or the
attorney general. Upon such notice the state insurance fund and the
attorney general shall, if so requested, assume control of the
representation of such officer or attorney, accountant or actuary in
connection with such claim, demand, suit, action or proceeding. Each
person so represented shall cooperate fully with the fund and the
attorney general or any other person designated to assume such defense
in respect of such representation or defense.
b. Notwithstanding any provision of law to the contrary, the state
shall also save harmless and indemnify the state insurance fund for any
and all financial loss and expense arising out of or in connection with
any claim, demand, suit, action, proceeding or judgment rendered
thereupon against such fund pursuant to subdivision four hereof,
provided that such fund shall, within five days after the date on which
it is served with, or receives actual notice of, any summons, complaint,
process, notice, demand, claim or pleading, give notice thereof to the
attorney general. Upon such notice the attorney general shall assume
control of the representation of such fund in connection with such
claim, demand, suit, action or proceeding. The fund shall cooperate
fully with the attorney general or any other person designated to assume
such defense in respect of such representation or defense.
Amortization of gains or losses. Gains or losses realized by
the state insurance fund as a result of sales or dispositions pursuant
to the authorization and direction of section eighty-seven-a,
eighty-seven-b, eighty-seven-bb, eighty-seven-c, or eighty-seven-f of
this chapter shall be transferred to a special asset account to be known
as the deferred charge on account of security exchanges and shall be
amortized within such account on a basis which matches as nearly as
possible all gains or losses so realized against any increase or
decrease in income resulting from the reinvestment of the proceeds of
such sales or dispositions, provided that the period of amortization of
the gain or loss resulting from the sale or disposition of each
investment shall not be longer than the unexpired period from the date
of such sale or disposition to the maturity of the investment so sold or
disposed of, or on such other basis as the superintendent of financial
services may authorize in his discretion.
Appropriations to the state insurance fund. 1.
Notwithstanding any other provision of law, the state insurance fund,
hereinafter referred to as the fund, and all state officers with
responsibility for the custody or investment of such fund or of its
assets, shall annually, no later than November first in each year,
submit to the director of the budget the fund's request for an
appropriation of one billion sixty-five million dollars. The governor
shall include such amount in a budget bill for the next state fiscal
year. The state comptroller shall encumber the amount so appropriated
before the end of the fiscal year for which any such appropriation is
made. If for any fiscal year commencing on or after April first,
nineteen hundred eighty-three, the governor fails to submit a budget
bill containing an appropriation in the amount requested by the fund or
the legislature fails to appropriate the amount in a budget bill
submitted by the governor for such fiscal year, the amount appropriated
for and encumbered during the preceding fiscal year shall be payable
forthwith to the fund on the first day of July of such year in the
manner prescribed by law, provided, however, that such amount shall not
exceed the amount of moneys transferred to the general fund, the note
repayment account or the capital projects fund by the fund pursuant to
the provisions of chapter fifty-five of the laws of nineteen hundred
eighty-two, chapter twenty-eight of the laws of nineteen hundred
eighty-six, chapter forty-seven of the laws of nineteen hundred
eighty-seven and chapter seven of the laws of nineteen hundred
eighty-nine.
2. Notwithstanding any other provision of law, the fund and all state
officers with responsibility for the custody or investment of such fund
or of its assets shall annually, no later than November first in each
year, submit to the director of the budget the fund's additional request
for an appropriation of two hundred thirty million dollars and the
governor shall include such additional amount in a budget bill for the
next state fiscal year. The state comptroller shall encumber the amount
so appropriated before the end of the fiscal year for which any such
appropriation is made. If for any fiscal year commencing on or after
April first, nineteen hundred ninety the governor fails to submit a
budget bill containing an appropriation in the amount requested by the
fund or the legislature fails to appropriate the amount in a budget bill
submitted by the governor for such fiscal year, the amount appropriated
for and encumbered during the preceding fiscal year shall be payable
forthwith to the fund on the first day of July of such year in the
manner prescribed by law, provided, however, that such amount shall not
exceed the amount of moneys transferred to the general fund or the note
repayment account by the fund pursuant to the provisions of a chapter of
the laws of nineteen hundred ninety entitled "AN ACT to authorize and
direct the transfer of hazardous waste remedial fund industry fee
transfer account balances and receipts to the general fund; to amend the
state finance law, in relation to industry fee surcharges and the
calculations relating thereto, to authorize the transfer of state
insurance fund balances to the general fund; to amend the workers'
compensation law, in relation to the provision of appropriations by the
state for the maintenance of reserves of the state insurance fund; and
making appropriations relating thereto".
3. It is hereby found and declared that any appropriations made as
provided for in subdivision one or two of this section shall be deemed
admitted assets of the state insurance fund, and that any transfer of
moneys by the fund to the general fund, the note repayment account or
the capital projects fund in accordance with the provisions of chapter
fifty-five of the laws of nineteen hundred eighty-two, chapter
twenty-eight of the laws of nineteen hundred eighty-six, chapter
forty-seven of the laws of nineteen hundred eighty-seven, chapter seven
of the laws of nineteen hundred eighty-nine or a chapter of the laws of
nineteen hundred ninety entitled "AN ACT to authorize and direct the
transfer of hazardous waste remedial fund industry fee transfer account
balances and receipts to the general fund; to amend the state finance
law, in relation to industry fee surcharges and the calculations
relating thereto, to authorize the transfer of state insurance fund
balances to the general fund; to amend the workers' compensation law, in
relation to the provision of appropriations by the state for the
maintenance of reserves of the state insurance fund; and making
appropriations relating thereto" is deemed a proper and prudent legal
undertaking for any state officer with the responsibility for the
custody or the investment of the assets of the fund, notwithstanding any
other provision of law to the contrary.
Advances to the urban development corporation. 1. The state
insurance fund, and all state officers with responsibility for the
custody or investment of such fund or of its assets, are authorized and
directed to take any and all actions necessary or appropriate to cause
such fund to advance thirty million dollars to the urban development
corporation as soon as possible, but in no event later than March
thirty-first, nineteen hundred ninety-one, in return for repayment of
the aforesaid advance to the state insurance fund over a maximum of
thirty years with interest from the date of advance at the rate of ten
per centum per annum calculated quarterly using actual days and payable
quarterly; said payment with accrued interest to be derived solely and
exclusively from moneys pledged to be repaid by the urban development
corporation to the state of New York out of payments on loans or leases
which the urban development corporation has made or will make pursuant
to appropriations and reappropriations through fiscal year nineteen
hundred eighty-nine--ninety and any subsequent reappropriations thereof
under the following legislative initiatives and any amendments thereof,
excluding, however, any moneys appropriated for the minority and women
revolving loan fund and the Buffalo minority and women enterprise
center:
Economic Development Purpose:
Chapter 776, section 3, of the laws of 1978, as amended by chapter 54,
section 3, of the laws of 1988 and reappropriated by chapter 54, section
3, of the laws of 1989 ($30,000,000); chapter 54, section 1, of the laws
of 1978, as amended by chapter 54, section 3, of the laws of 1988 and
reappropriated by chapter 54, section 3, of the laws of 1989
($24,000,000).
High Risk Targeted Investment Purpose:
Chapter 54, section 1, of the laws of 1989, as amended by chapter 361,
section 1, of the laws of 1989 ($4,150,000); chapter 54, section 1, of
the laws of 1988, as amended by chapter 391, section 2 of the laws of
1989 ($7,500,000); chapter 54, section 1, of the laws of 1987, as
amended by chapter 391, section 2, of the laws of 1989 ($7,000,000);
chapter 54, section 1, of the laws of 1986, as amended by chapter 391,
section 2, of the laws of 1989 ($7,000,000); chapter 54, section 1, of
the laws of 1985, as amended by chapter 54, section 3, of the laws of
1988 and reappropriated by chapter 54, section 3, of the laws of 1989
($9,500,000); chapter 54, section 1, of the laws of 1984, as amended by
chapter 54, section 3, of the laws of 1988 and reappropriated by chapter
54, section 3, of the laws of 1989 ($9,500,000); chapter 54, section 1,
of the laws of 1983, as last reappropriated pursuant to chapter 54,
section 3, of the laws of 1984 ($9,500,000); chapter 50, section 1, of
the laws of 1982 ($9,500,000); chapter 50, section 1, of the laws of
1981, as last reappropriated by chapter 54, section 3, of the laws of
1984 ($7,000,000).
Industrial Building Recycling Program:
Chapter 50, section 1, of the laws of 1981, as amended and last
reappropriated pursuant to chapter 54, section 3, of the laws of 1988
($1,500,000).
Industrial Innovation Program:
Chapter 54, section 1, of the laws of 1984, as amended and
reappropriated by chapter 54, section 3, of the laws of 1989
($10,000,000).
Small and Medium-sized Business Assistance Program:
Chapter 54, section 1, of the laws of 1989, as amended by chapter 391,
section 1, of the laws of 1989 ($2,000,000); chapter 54, section 1, of
the laws of 1988 ($2,000,000); chapter 54, section 1, of the laws of
1987, as amended by chapter 391, section 2, of the laws of 1989
($4,200,000); chapter 54, section 1, of the laws of 1986, as amended by
chapter 54, section 3, of the laws of 1988 ($8,000,000).
Strategic Resurgence Fund:
Chapter 54, section 1, of the laws of 1989, as amended by chapter 391,
section 1, of the laws of 1989 ($6,850,000); chapter 54, section 1, of
the laws of 1988, as amended by chapter 54, section 3, of the laws of
1989 ($10,000,000); chapter 54, section 1, of the laws of 1987, as
amended by chapter 839, section 29, of the laws of 1987, and
reappropriated by chapter 54, section 3, of the laws of 1989
($10,500,000).
Regional Economic Development Program:
Chapter 54, section 1, of the laws of 1985, as amended by chapter 54,
section 3, of the laws of 1987 ($5,000,000).
Notwithstanding any other provision of law, to the extent of the
moneys to be so repaid with accrued interest to the state insurance
fund, any obligations of the urban development corporation to the state
of New York under the appropriations and reappropriations enumerated
above are replaced by and become obligations of the urban development
corporation to the state insurance fund until such time as the aforesaid
advance, with interest, is fully repaid; and all payments received by
the urban development corporation from the loans and leases made
pursuant to appropriations and reappropriations enumerated above, and
from such other loans and leases then held by the urban development
corporation and in which the state is not a leasee or subleasee as the
director of the budget may approve, shall be remitted to the state
insurance fund, and to no other person or entity, including the state of
New York, until there is repayment in full of the advance and all
accrued interest to the state insurance fund, such remittals to be
credited first against any unpaid accrued interest and then to the
principal of the advance.
2. It is hereby found and declared that any and all such advances to
the urban development corporation are reasonable, prudent, proper and
legal investments for the state insurance fund and for all state
officers with responsibility for the custody or investment of such fund
or of its assets.
3. In order to obtain the funds necessary to make the advances
required by subdivision one of this section, the state insurance fund,
and all state officers with responsibility for the custody or investment
of such fund or of its assets, are authorized and directed to take any
and all actions necessary or appropriate to cause such fund to sell
securities owned by the fund or to borrow an amount not exceeding the
obligation incurred by such fund pursuant to this section and to pledge
as collateral therefor such assets, on such terms and conditions as are
found to be fair and reasonable by the state superintendent of financial
services.
4. Notwithstanding any other provision of law, no state officer with
responsibility for the custody or investment of the state insurance fund
or of its assets, or for the approval of the sale or investment of such
assets, nor any investment advisor, attorney, accountant or actuary who
shall have been employed by or shall have advised such officer, shall
incur or suffer any liability whatsoever to any person by reason of
actions taken pursuant to the authorization and direction of subdivision
one or three of this section. Any action which could have been brought
against any aforementioned state officer, investment advisor, attorney,
accountant or actuary, except for the provisions of this subdivision,
may be brought against the state insurance fund.
5. a. Notwithstanding any other provision of law, including the
provisions of section seventeen of the public officers law, the state
insurance fund and the state, jointly and severally, shall save harmless
and indemnify each and every state officer with responsibility for the
custody or investment of such fund or of its assets or for the approval
of the sale or investment of such assets, and any investment advisor,
attorney, accountant or actuary who shall have been employed by or who
shall have advised such officer, and the state shall save harmless and
indemnify the state insurance fund, from any and all financial loss and
expense arising out of or in connection with any claim, demand, suit,
action, proceeding or judgment for alleged negligence, gross negligence,
waste or breach of fiduciary duty, or incapacity of any kind by reason
of any transaction pursuant to the authorization and direction of
subdivision one or three of this section, provided that such officer,
investment advisor, attorney, accountant or actuary shall, within
fifteen days after the date on which he is personally served with, or
receives actual notice of, any summons, complaint, process, notice,
demand, claim or pleading, give notice thereof to such fund or the
attorney general. Upon such notice the state insurance fund and the
attorney general shall, if so requested, assume control of the
representation of such officer or investment advisor, attorney,
accountant or actuary, in connection with such claim, demand, suit,
action or proceeding. Each person so represented shall cooperate fully
with the fund and the attorney general or any other person designated to
assume such defense in respect of such representation or defense.
b. Notwithstanding any provision of law to the contrary, the state
shall also save harmless and indemnify the state insurance fund for any
and all financial loss and expense arising out of or in connection with
any claim, demand, suit, action, proceeding or judgment rendered
thereupon against such fund pursuant to subdivision four hereof or by
reason of any transaction pursuant to the authorization and direction of
subdivision one or three of this section, provided that such fund shall,
within fifteen days after the date on which it is served with, or
receives actual notice of, any summons, complaint, process, notice,
demand, claim or pleading, give notice thereof to the attorney general.
Upon such notice the attorney general shall assume control of the
representation of such fund in connection with such claim, demand, suit,
action or proceeding. The fund shall cooperate fully with the attorney
general or any other person designated to assume such defense in respect
of such representation or defense.
Investments of the state insurance fund. 1. The state
insurance fund, and all state officers with responsibility for the
custody or investment of such fund or of its assets, are authorized to
take any and all actions necessary or appropriate to cause such fund to
make purchases of the interest of the New York state urban development
corporation in certain securities or moneys as described in section
three hundred thirty of the chapter of the laws of nineteen hundred
ninety which added this section or its interest in such portion of such
securities or moneys as shall be specified by the director of the
budget, for a price equal to the reasonable value of the securities or
moneys so purchased; provided that all payments which the fund shall be
entitled to as buyer of such interest of the New York state urban
development corporation in such moneys or securities as provided in such
chapter shall be secured through credit enhancement provided by an
enhancer whose credit rating at the time the enhancement arrangement is
entered into is at least "Aa" or "AA", as the case might be, by a
nationally recognized rating agency. Such fund is further authorized to
enter into such transactions with respect to such securities as are
necessary to effectuate the purposes of such chapter.
2. It is hereby found and declared that any and all such purchases of
such interest in such securities or moneys are reasonable, prudent,
proper and legal investments for the state insurance fund and for all
state officers with responsibility for the custody or investment of such
fund or of its assets.
3. In order to obtain the funds necessary to make the purchases
authorized by subdivision one of this section, the state insurance fund,
and all state officers with responsibility for the custody or investment
of such fund or of its assets, are authorized to take any and all
actions necessary or appropriate to cause such fund to sell securities
owned by the fund or to borrow an amount not exceeding the obligation
incurred by such fund pursuant to this section and to pledge as
collateral therefor such assets, on such terms and conditions as are
found to be fair and reasonable by the state superintendent of financial
services.
4. Notwithstanding any other provision of law, no state officer with
responsibility for the custody or investment of the state insurance fund
or of its assets, or for the approval of the sale or investment of such
assets, nor any investment advisor, attorney, accountant or actuary who
shall have been employed by or shall have advised such officer, shall
incur or suffer any liability whatsoever to any person by reason of
actions taken pursuant to the authorization of subdivision one or three
of this section. Any action which could have been brought against any
aforementioned state officer, investment advisor, attorney, accountant
or actuary, except for the provisions of this subdivision, may be
brought against the state insurance fund.
5. a. Notwithstanding any other provision of law, including the
provisions of section seventeen of the public officers law, the state
insurance fund and the state, jointly and severally, shall save harmless
and indemnify each and every state officer with responsibility for the
custody or investment of such fund or of its assets or for the approval
of the sale or investment of such assets, and any investment advisor,
attorney, accountant or actuary who shall have been employed by or who
shall have advised such officer, and the state shall save harmless and
indemnify the state insurance fund, from any and all financial loss and
expense arising out of or in connection with any claim, demand, suit,
action, proceeding or judgment for alleged negligence, gross negligence,
waste or breach of fiduciary duty, or incapacity of any kind by reason
of any transaction pursuant to the authorization of subdivision one or
three of this section, provided that such officer, investment advisor,
attorney, accountant or actuary shall, within fifteen days after the
date on which he is personally served with, or receives actual notice
of, any summons, complaint, process, notice, demand, claim or pleading,
give notice thereof to such fund or the attorney general. Upon such
notice the state insurance fund and the attorney general shall, if so
requested, assume control of the representation of such officer or
investment advisor, attorney, accountant or actuary, in connection with
such claim, demand, suit, action or proceeding. Each person so
represented shall cooperate fully with the fund and the attorney general
or any other person designated to assume such defense in respect of such
representation or defense.
b. Notwithstanding any provision of law to the contrary, the state
shall also save harmless and indemnify the state insurance fund for any
and all financial loss and expense arising out of or in connection with
any claim, demand, suit, action, proceeding or judgment rendered
thereupon against such fund pursuant to subdivision four hereof or by
reason of any transaction pursuant to the authorization of subdivision
one or three of this section, provided that such fund shall, within
fifteen days after the date on which it is served with, or receives
actual notice of, any summons, complaint, process, notice, demand, claim
or pleading, give notice thereof to the attorney general. Upon such
notice the attorney general shall assume control of the representation
of such fund in connection with such claim, demand, suit, action or
proceeding. The fund shall cooperate fully with the attorney general or
any other person designated to assume such defense in respect of such
representation or defense.
New York state insurance fund MWBE asset management and
financial institution strategy. 1. Within the discretion of the
commissioners of the state insurance fund and in accordance with and
subject to their fiduciary duty and obligations as trustees of the state
insurance fund and to the beneficiaries of such fund and such other
investment limitations as may be prescribed by this chapter, the
commissioners are authorized to establish an MWBE asset management and
financial institution strategy including reasonable goals for
utilization of MWBE asset managers, MWBE financial institutions and MWBE
financial and professional service firms, which strategy shall include,
but shall not be limited to, the following objectives:
(a) investing assets of the state insurance fund with MWBE asset
managers;
(b) subject to best execution, (1) conducting trades of public equity
securities with MWBE financial institutions; and (2) conducting trades
of fixed-income securities through MWBE financial institutions;
(c) allocating investments of assets of the state insurance fund
either through (1) direct investments in the equities and debt
securities of MWBEs; or (2) indirectly through special programs
involving MWBE asset managers; and
(d) awarding contracts for accounting, banking, financial advisory,
insurance, legal, research, valuation and other financial and
professional services to MWBE financial institutions and other MWBE
professional service firms.
As used in this section, the terms "MWBE asset manager", "MWBE
financial institutions", "MWBE", "fiduciary-controlled entities" and
"best execution" shall have the meanings specified in section one
hundred seventy-six of the retirement and social security law and shall
be certified in a manner consistent with the provisions of subdivision
three of section four hundred twenty-three-c of the retirement and
social security law.
2. The commissioners are also authorized to:
(a) periodically advertise the existence of such strategy so that MWBE
asset managers, MWBE financial institutions and other MWBE professional
service firms are made aware of the opportunities made available
pursuant to this strategy;
(b) within sixty days of the end of each fiscal year following the
effective date of this section, the commissioners shall report to the
governor, the legislature and the chief diversity officer of the state
of New York on the participation of MWBE asset managers, MWBE financial
institutions and MWBE professional service providers in investment and
brokerage transactions with or as providers of services for the state
insurance fund, including a comparative analysis of such activity
relative to such activity with all asset managers, financial
institutions and professional service providers for the relevant period
and on the progress and success of the efforts undertaken during such
period to achieve the goals of such strategy. Each report shall be
simultaneously published on the website of the state insurance fund for
not less than sixty days following its release to the governor and the
other recipients named above;
(c) work with the other fiduciary-controlled entities to create a
database of such MWBE entities; and
(d) periodically, but not less than annually, hold a conference to
promote such strategy in conjunction with the other fiduciary-controlled
entities.
* § 88. Administration expenses. The entire expense of administering
the state insurance fund shall be paid out of such fund. The portion of
such expenses applicable and chargeable to the disability benefits fund
and the medical and hospital malpractice fund shall be determined on an
equitable basis with due allowance for the division of overhead
expenses. Not later than the first day of November there shall be
submitted to the director of the budget for his approval an estimated
budget of expenditures for the succeeding calendar year having due
regard to the business interests and contract obligations of the fund.
There may not be expended for the state insurance fund for purposes of
administration more than the amounts specified in such budget for each
item of expenditure, except as authorized by the director of the budget.
In no case shall the amount of expenditures so authorized for an entire
year for workers' compensation insurance exceed twenty-five per centum
of the earned premiums for such insurance for that year. In no case
shall the amount of expenditures authorized for the disability benefits
fund for an entire year exceed twenty-five per centum of the premiums
earned by that fund. In no case shall the amount of expenditures
authorized for the medical and hospital malpractice fund for an entire
year exceed twenty-five per centum of the premiums earned by that fund.
If there be officers or employees of the department whose duties relate
partly to the general work of the department and partly to the work of
the state insurance fund, and in case there is other expense which is
incurred jointly on behalf of the general work of the department and the
state insurance fund, an equitable apportionment of the expense shall be
made and the part thereof which is applicable to the state insurance
fund shall be chargeable thereto. The expenses of the department of
audit and control incurred in connection with the pre-audit of
expenditures of the state insurance fund, as required by section one
hundred eleven of the state finance law, shall be a charge against and
be paid out of the moneys of the state insurance fund and there shall be
included in the annual estimate submitted pursuant to this section an
amount sufficient to pay such expenses for the period covered by such
estimate. Notwithstanding section four of the state finance law, the
state comptroller is authorized to process or approve payments related
to business taxes, various workers' compensation board assessments and
assessments related to the workers' compensation rating board directly
from the fund's accounts without explicit appropriation authority. The
commissioner of labor shall include in his annual report to the
legislature a statement of the commissioners showing the expense of
administering the state fund for the preceding year. All appointments to
positions in the state insurance fund shall be made subject to civil
service requirements.
* NB There are 2 § 88's
Payments from special or administrative funds. Whenever the
compensation of any employees of the state insured in the state
insurance fund is paid from a special or administrative fund provided
for by law, all payments to the state insurance fund for insurance
premiums on account of such employees including a proportionate share of
the administrative expense of the state insurance fund on account
thereof, which otherwise would be payable from the general fund of the
state treasury, shall, with the approval of the director of the budget,
be paid from such special or administrative fund.
Coverage of employees in state-supported educational
institutions. Compensations payable under this chapter to employees of
state colleges, schools and experiment stations, administered by Cornell
university, Syracuse university and Alfred university shall be paid from
the state insurance fund, and all payments to the state insurance fund
for insurance premiums on account of such employees including a
proportionate share of the administrative expense of the state insurance
fund on account thereof shall be paid out of the general fund of the
state treasury from moneys deposited to the credit of the public
services fund therein.
The payroll records of the employees so covered shall be established
and segregated with the approval of the director of the budget.
Coverage of state employees. Notwithstanding any other
provisions of law to the contrary and except as set forth in section two
hundred and twelve-a of this chapter, the liability of the state for the
payment of compensation under this chapter heretofore existing or
hereinafter arising shall be secured by an insuring agreement to be
entered into between the department of civil service and the state
insurance fund wherein the state, from moneys appropriated therefor,
shall pay in advance to the fund on a periodic basis the actual costs to
the fund for the meeting and paying, as the same become due and payable,
all obligations incurred under this chapter by the state as an employer.
Notwithstanding any law to the contrary, the fund may on an actuarially
sound basis provide to the state insurance for any portion of the
obligations of the state as employer under this chapter with respect to
injuries or deaths resulting from accidents arising out of and in the
course of employment on or after April first, nineteen hundred
eighty-one. All such payments made by the state and paid into the state
fund shall constitute a separate account in the fund to be used solely
for the purpose of discharging all compensation obligations of the state
pursuant to the provisions of this chapter and in accordance with the
insuring agreement as provided in this section. Any portion of the
account may be invested in the same manner as the assets of the fund as
provided in section eighty-seven of this article. The liability of the
fund for the payment of any claims or the meeting of any obligations of
the state as an employer as provided in this chapter shall not exceed
the moneys paid into such separate account and any increments or
diminutions thereof. The agreement shall further provide that the fund
shall render all services and make all reasonable expenditures necessary
or required for the processing, defense and payment of all claims under
this chapter, including the protection of liens, subrogation, credit and
other rights of the state as an employer or the fund as an insurer, in
situations where the employees' injuries or deaths were caused by
culpability of third parties. Except to the extent that the state
obtains insurance on an actuarially sound basis pursuant to the
provisions of this section, the provisions of section eighty-six of this
chapter with respect to the maintenance of reserves for the purpose of
meeting anticipated compensation losses, shall not in any manner be
applicable to claims of employees of the state with respect to injuries
or deaths resulting from accidents arising out of and in the course of
employment prior to April first, nineteen hundred eighty-one, or to an
insuring agreement entered into between the state insurance fund and the
department of civil service in accordance with the provisions of this
section.
Rates for workers' compensation. 1. Employments and employees
in the state fund shall be divided into such groups and classes as shall
be equitable based upon differences of industry or hazard for the
purpose of establishing premium rates for workers' compensation
insurance, and for such purpose a system of merit rating may be employed
which shall take account of the peculiar hazard of each individual risk.
Such premiums in the state fund shall be fixed at the lowest possible
rates consistent with the maintenance of a solvent fund and of
reasonable reserves and surplus.
2. Premiums for construction classification employers shall be
subject to a payroll limitation on each construction classification
subject to the following transition program. For purposes of this
section, "construction classification" shall mean employments classified
under sections two hundred twenty, two hundred forty and two hundred
forty-one of the labor law, provided such employments are classified
under each of said sections, except that construction classification
shall not include any employments engaged in the construction of one or
two family residential housing.
(a) For policies with rating anniversary dates after September
thirtieth, nineteen hundred ninety-nine and before October first, two
thousand, an employer's payroll for premium computation purposes in the
affected construction classifications shall be the actual weekly payroll
per employee for the number of weeks employed subject to a maximum of
nine hundred dollars per week per employee plus one-half of the
difference between the employer's total payroll and the limited payroll.
(b) For policies with rating anniversary dates after September
thirtieth, two thousand and before October first, two thousand one, an
employer's payroll for premium computation purposes in the affected
construction classifications shall be the actual weekly payroll per
employee for the number of weeks employed subject to a maximum of nine
hundred dollars per week per employee.
(c) For policies with rating anniversary dates after September
thirtieth, two thousand one and before October first, two thousand two,
an employer's payroll for premium computation purposes in the affected
construction classifications shall be the actual weekly payroll per
employee for the number of weeks employed subject to a maximum of eight
hundred dollars per week per employee.
(d) For policies with rating anniversary dates after September
thirtieth, two thousand two, an employer's payroll for premium
computation purposes in the affected construction classifications shall
be the actual weekly payroll per employee for the number of weeks
employed subject to a maximum of the greater of seven hundred fifty
dollars per week or the weekly payroll amount upon which the maximum
weekly benefit is based, per employee.
3. The base rates applicable to construction classifications as
defined in this subdivision shall be adjusted by the New York workers'
compensation rating board beginning October first, nineteen hundred
ninety-nine, to reflect the payroll limitations required by this
subdivision as they separately affect such rates for work actually
performed within each of the following geographic territories:
(a) Territory 1 comprising the counties of the Bronx, Kings, New York,
Queens, and Richmond;
(b) Territory 2 comprising the counties of Dutchess, Nassau, Orange,
Putnam, Rockland, Suffolk and Westchester; and
(c) Territory 3 comprising all other counties within the state.
Dividends. Policyholders insured in the state insurance fund may
be divided into such groups as shall be equitable for the purpose of
accounting and declaration of dividends but for the purpose of paying
compensation the state fund shall be deemed one and indivisible.
Separate accounts shall be kept of income and of losses and expenses
incurred, including contributions to catastrophe surplus and reserves
adequate to meet anticipated losses and carry all claims to maturity,
for each such group. If such accounting shows a balance remaining to the
credit of the group at the close of any policy period, which shall be
deemed to be safely and properly so applied, there may be credited or
paid to each individual member of such group such proportion of such
balance as the amount of his earned premium sustains to the total earned
premium of the group for the period for which the accounting is made. If
any member who has withdrawn from the group would otherwise have been
entitled to such a dividend, the same may be credited or paid to him.
Groups for accident prevention. For any group established under
the provisions of section ninety membership in the group of any employer
otherwise entitled to be admitted thereto may be conditional upon
acceptance and maintenance of special rules as to administration and as
to accident prevention and medical care of employees. Such limitation of
membership in the group may be established only upon proper evidence
that a majority of the members of the group have approved such rules and
only when such rules have been approved by the commissioners as
sufficient to constitute a proper basis of differentiation as to
membership in the group.
Payment of premiums. 1. Workers' compensation insurance premiums
for any policy period shall be paid into the state insurance fund at the
beginning of the period when the amount of such premium is less than one
thousand dollars according to the estimated expenditure of wages for the
period except to the extent that rules of the commissioners permit such
amount to be paid by installments. For all other policyholders, workers'
compensation insurance premiums for any policy period based on an
estimated expenditure of wages for the period may, at the policyholders'
option, be paid into the state insurance fund by installments in
accordance with rules promulgated by the commissioners.
2. Disability benefits insurance premiums for any period shall be paid
into the state insurance fund at the beginning of the period according
to the estimated expenditure of wages for the period except to the
extent that rules of the commissioners permit such amount to be paid by
installments.
3. At the end of the period an adjustment of the premium shall be made
according to the actual expenditure of wages. If such adjusted premium
is more than the premium paid at the beginning of the period, the
policyholder shall pay the difference immediately upon notification of
the amount due except to the extent that rules promulgated by the
commissioners permit such amount to be paid by installments. If such
adjusted premium is less than the premium paid in advance, the state
insurance fund shall, at the policyholder's option, either refund the
difference or credit the amount thereof to the policyholder's account
with the state insurance fund.
Collection of premium in case of default. a. If a policyholder
shall default in any payment required to be made by him to the state
insurance fund after due notice, his insurance in the state fund may be
cancelled and the amount due from him shall be collected by civil action
brought against him in any county wherein the state insurance fund
maintains an office in the name of the commissioners of the state
insurance fund and the same when collected, shall be paid into the state
insurance fund, and such policyholder's compliance with the provisions
of this chapter requiring payments to be made to the state insurance
fund shall date from the time of the payment of said money to the state
insurance fund.
b. An employer, whose policy of insurance has been cancelled by the
state insurance fund for non-payment of premium and assessments or
withdraws pursuant to section ninety-four of this article, is ineligible
to contract for a subsequent policy of insurance with the state
insurance fund while the billed premium on the cancelled policy remains
uncollected. However, the state insurance fund shall have discretion to
issue a new policy to such employer by consenting to a payment plan for
the employer to pay off the balance on the prior policy provided that
(1) any required payroll audit or self-audit has been completed at the
time the new policy is issued, (2) the employer's prior payment and
policy history meet the state insurance fund's underwriting standards,
(3) the employer has demonstrated the ability to pay the deposit premium
on the new policy and the first installment of the balance due on the
prior cancelled policy prior to issuance of the new policy, and (4) the
employer has demonstrated the ability to pay the overdue balance from
the prior cancelled policy by installments as determined by the state
insurance fund together with payments on the new policy within twelve
months from the date the new policy is issued. If an employer is issued
a new policy pursuant to this subdivision, such employer shall be
required to make the final payment on such overdue balance within twelve
months from the date the new policy is issued. If the employer defaults
on payment for either the new policy or the balance due from the prior
cancelled policy, the employer's new policy is subject to cancellation
for non-payment of premium as provided under this chapter. If the new
policy issued pursuant to this subdivision is cancelled, the employer
shall be ineligible for an additional policy until all amounts due from
all prior cancelled policies have been paid.
c. The state insurance fund shall not be required to write a policy of
insurance for any employer which is owned or controlled or the majority
interest of which is owned or controlled, directly or indirectly, by any
person who directly or indirectly owns or controls or owned or
controlled at the time of cancellation an employer whose former policy
of insurance with the state insurance fund was cancelled for non-payment
of premium and assessments or withdraws pursuant to section ninety-four
of this article or who is or was at the time of cancellation the
president, vice-president, secretary or treasurer of such an employer
until the billed premium on the cancelled policy is paid. The state
insurance fund shall have discretion to write a policy to such an
employer using the same terms as applicable to writing a policy of
insurance to a former policyholder that owes a balance on a prior policy
as provided under subdivision b of this section.
For purposes of this subdivision, "person" shall include individuals,
partnerships, corporations, and other associations.
Withdrawal from fund. a. Any employer may, upon complying
with subdivision two or three of section fifty of this chapter, withdraw
from the fund by turning in his insurance contract for cancellation,
provided he has given written notice to the fund of his intention to
withdraw not less than thirty days before the effective date of such
cancellation. Upon receipt of such notice the fund shall, at least ten
days prior to the effective date file in the office of the chairman a
notice of such cancellation date.
In no event shall the insurance contract be deemed cancelled until at
least ten days after the date of such filing, any earlier date mentioned
in the notice to the contrary notwithstanding.
If an employer withdraws from the fund upon complying with subdivision
two of section fifty of this chapter, the new insurance contract with
the stock corporation, mutual corporation or reciprocal insurer shall be
deemed not to take effect until the cancellation of such employer's
contract with the state insurance fund has become effective.
b. Notwithstanding any of the provisions contained in subdivision five
of section fifty-four of this chapter the fund may cancel a contract of
insurance at any time during the contract period upon being furnished by
an employer with proof satisfactory to the fund that he is no longer
required to comply with section fifty of this chapter by reason of his
having discontinued, sold, transferred, assigned or otherwise disposed
of his business and has ceased employing workmen or operatives; or,
where the insurance contract has been issued to cover the operations
under a specific contract or at a specified location, that such
operations have been completed or discontinued and the employment of
workmen or operatives in connection therewith has ceased; provided,
however, such cancellation shall not become effective until at least ten
days after notice thereof shall have been filed in the office of the
chairman.
Record and audit of payrolls. (1) Every employer who is insured
in the state insurance fund shall keep a true and accurate record of the
number of his employees and the wages paid by him, and shall furnish,
upon demand, a sworn statement of the same. Such record shall be open
to inspection at any time and as often as may be necessary to verify the
number of employees and the amount of the payroll. Any employer who
shall fail to keep such record, who shall willfully fail to furnish such
record or who shall willfully falsify any such record, shall be guilty
of a misdemeanor.
(2) Employers subject to subdivision (e) of section two thousand three
hundred four of the insurance law and subdivision two of section
eighty-nine of this article shall keep a true and accurate record of
hours worked for all construction classification employees. The willful
failure to keep such record, or the knowing falsification of any such
record, may be prosecuted as insurance fraud in accordance with the
provisions of section 176.05 of the penal law.
Penalties for fraudulent practices. 1. Any person who knowingly
makes a false statement or representation, conceals any material fact,
or engages in any other fraudulent scheme or device for the purpose of
obtaining, maintaining or renewing insurance in the state insurance fund
at less than the proper rate for such insurance, whether for himself or
herself or any other person or entity, or for the purpose of evading the
requirements of section fifty of this chapter or for the purpose of
obtaining any benefit or payment out of such fund, whether for himself
or herself or any other person or entity, shall be guilty of a class E
felony. If a violation of this subdivision is alleged and such act could
also constitute a violation of the penal law or any other law, the
prosecuting official may charge such person pursuant to the provisions
of this section and charge such person in accordance with such other law
or laws. In addition to any other remedy, the state insurance fund shall
be entitled to restitution for any amount obtained or withheld as a
result of a violation of this subdivision.
2. For violations of subdivision one of this section, the state
insurance fund shall have a right of action to recover civil damages
equal to three times the amount wrongfully obtained, or five thousand
dollars, whichever is greater. The remedy provided in this section shall
be in addition to any other remedy provided by law.
Inspections. The commissioners shall have the right to inspect
the plants and establishments of employers insured in the state
insurance fund; and the inspectors designated by the commissioners shall
have free access to such premises during regular working hours.
Disclosures prohibited. Information as required by the state
fund, or its officers or employees, from employers or employees pursuant
to this chapter shall not be opened to public inspection, and any
officer or employee who, without authority of the commissioners or
pursuant to their regulations, or as otherwise required by law, shall
disclose the same shall be guilty of a misdemeanor.
Reports of state insurance fund. 1. The commissioners shall make
separate reports to the superintendent of financial services concerning
the state insurance fund at the same time and in the same manner as is
required from mutual employer's liability and workers' compensation
corporations by section three hundred seven of the insurance law, and
the superintendent of financial services may examine into the condition
of such state insurance fund at any time, either personally or by any
duly authorized examiner appointed by him for the purpose of determining
the condition of the investments and the adequacy of the reserves of
such fund and such other matters as shall be in the jurisdiction of the
superintendent of financial services.
2. The commissioners shall file annually with the state comptroller,
on or before June fifteenth, financial statements for the state
insurance fund audited by an independent auditor. Such statements shall
be prepared in the same manner as reports filed with the superintendent
of financial services under subdivision one of this section. A copy of
the independent auditor's report shall accompany any financial
statements submitted pursuant to this subdivision.
Insurance against liability to volunteer firefighters and
ambulance workers. Insurance contracts issued by the state insurance
fund to insure political subdivisions against liability in relation to
volunteer firefighters or volunteer ambulance workers under the
volunteer firefighters' benefit law or the volunteer ambulance workers'
benefit law shall be designated "volunteer firefighters' benefit
insurance" or "volunteer ambulance workers' benefit insurance". The
provisions of this article which are not inconsistent with such laws
shall be applicable in relation to such insurance. The following terms
used in this article, unless inconsistent with the volunteer
firefighters' benefit law or the volunteer ambulance workers' benefit
law, are hereby enlarged as follows:
1. "Employer" includes any political subdivision liable for benefits
pursuant to the volunteer firefighters' benefit law or the volunteer
ambulance workers' benefit law.
2. "Employee" includes a volunteer firefighter or volunteer ambulance
worker who has been or might be injured in line of duty or who dies or
might die from such an injury. When a political subdivision or a
district or area thereof is responsible for the payment of benefits
pursuant to the volunteer firefighters' benefit law or the volunteer
ambulance workers' benefit law, it shall be deemed the "employer" of
such "employee."
3. "Workers' compensation" and "compensation" include the benefits in
relation to volunteer firefighters or volunteer ambulance workers
pursuant to the volunteer firefighters' benefit law or the volunteer
ambulance workers' benefit law.
4. "This chapter" includes the volunteer firefighters' benefit law and
the volunteer ambulance workers' benefit law, except when such a meaning
is inconsistent with this article.
ARTICLE 6-A Workers' Compensation Security Fund
Consolidation of funds; definitions. On and after March first,
nineteen hundred ninety, the stock workers' compensation security fund
and the mutual workers' compensation security fund heretofore created
are hereby consolidated into a single fund to be known as the "workers'
compensation security fund". All assets, liabilities, rights and
obligations of the stock workers' compensation security fund and the
mutual workers' compensation security fund are hereby transferred and
assigned to and assumed by and devolved upon the workers' compensation
security fund and shall continue to be assets, liabilities, rights and
obligations of such fund without diminution or impairment. As used in
this article, unless the context or subject matter otherwise require;
"Fund" means the workers' compensation security fund.
"Fund year" means the calendar year.
"Stock carrier" means any stock corporation other than an insolvent
carrier, authorized to transact the business of workmen's compensation
insurance in this state.
"Mutual carrier" means any mutual corporation or reciprocal insurer,
other than an insolvent carrier, authorized to transact the business of
workmen's compensation insurance in this state.
"Nonprofit property/casualty insurance company" means a nonprofit
property/casualty insurance company as defined in paragraph fifty-three
of subsection (a) of section one hundred seven of the insurance law.
"Reciprocal insurer" means any reciprocal insurer authorized to
transact the business of workmen's compensation insurance in this state
and such reciprocal insurer shall be deemed to be a mutual carrier
within the intent of the several provisions of this article.
"Carrier" means a stock or mutual corporation or a reciprocal insurer
or a nonprofit property/casualty insurance company, if such corporation
or insurer is authorized to transact the business of workers'
compensation insurance in this state, including but not limited to the
issuance of an assumption of workers' compensation liability insurance
policy, but not including any such corporation or insurer which is
insolvent.
"Insolvent carrier" means a carrier as to which an order of
rehabilitation or of liquidation, or, if such carrier be a foreign
insurer, as to which an order for conservation of its assets within the
state, shall have been made after the effective date of this article
pursuant to article seventy-four of the insurance law, or a foreign
carrier which withdraws from or discontinues operation in this state and
fails to meet payments due on awards made, but not including a carrier,
whether a domestic or foreign insurer, which shall have become
rehabilitated and allowed to resume business after any such
rehabilitation or conservation of assets and meets its obligations as
they mature.
"Employer" includes any political subdivision liable for benefits
pursuant to the volunteer firefighters' benefit law.
"Employment" includes the service of a volunteer firefighter for which
a political subdivision is liable for benefits pursuant to the volunteer
firefighters' benefit law.
"Workers' compensation" and "compensation" include the benefits in
relation to volunteer firefighters and volunteer ambulance workers
pursuant to the volunteer firefighters' benefit law and the volunteer
ambulance workers' benefit law and benefits in relation to longshore and
harbor workers pursuant to the longshore and harbor workers'
compensation act, United States Code, Title 33, Sections 901 through
950.
"This chapter" includes the volunteer firefighters' benefit law and
the volunteer ambulance workers' benefit law; and the longshore and
harbor workers' compensation act, United States Code, Title 33, Sections
901 through 950; except when such a meaning is inconsistent with this
article.
Workers' compensation security fund. The purpose of the fund is
to assure to persons and funds entitled thereto the compensation and
benefits provided by this chapter for employments insured in insolvent
carriers, including the return of unearned premiums. Such fund shall be
applicable to the payment of awards for compensation or death benefits
and to the payment of benefits into the special funds created under the
provisions of subdivisions eight and nine of section fifteen and section
twenty-five-a of this chapter heretofore or hereafter made pursuant to
this chapter, and remaining unpaid, in whole or in part, by reason of
the default, after the effective date of this article, of an insolvent
carrier including the return of unearned premiums, but such fund shall
not be applicable to the payment of any amounts due under any policy of
reinsurance issued to an insurance carrier. The fund shall also be
applicable to the payment of liability claims against an employer under
the employer's liability insurance portion of the standard New York
workers' compensation and employer's liability insurance policy, but no
payment from the fund for such liability claim shall exceed the lesser
of the policy limit or one million dollars on any one claim. Expenses of
administration also shall be paid from the fund as herein provided. Such
fund shall consist of all contributions received and paid into the fund
by carriers, as herein defined, of property and securities acquired by
and through the use of moneys belonging to the fund and of interest
earned upon moneys deposited or invested as herein provided. The payment
of the return of unearned premiums and the payment of liability claims
provided for pursuant to the provisions of this section shall be made
only if the fund is determined by the superintendent of financial
services to be sufficient to satisfy all claims for compensation or
death benefits and to the payment of benefits into the special funds
created under the provisions of subdivisions eight and nine of section
fifteen and section twenty-five-a of this chapter and, provided further,
that the superintendent of financial services shall designate sufficient
assets from this fund for the payment of such claims which shall not at
any time be diverted to any other use or purpose. The fund shall be
administered by the superintendent of financial services in accordance
with the provisions of this article.
Payments into fund; returns; recoupment. 1. On or before the
fifteenth day of February, May, August and November, of each year, every
carrier shall file, quarterly, with the superintendent of financial
services and with the commissioner of taxation and finance, identical
returns, under oath, on a form to be prescribed and furnished by the
superintendent of financial services, stating the amount of net written
premiums for policies issued or renewed by such carrier, during the
three months' periods ending, respectively, on the preceding December
thirty-first, March thirty-first, June thirtieth, and September
thirtieth, to insure payment of compensation pursuant to this chapter
and/or the longshore and harbor workers' compensation act and stating
the amount of dividends paid to policyholders during said period. For
the purposes of this section "net written premiums" shall mean gross
written premiums less return premiums on policies returned "not taken"
and on policies cancelled, but shall not mean premiums for reinsurance.
2. For the privilege of carrying on the business of workers'
compensation insurance in this state, every carrier shall pay into the
fund for deposit in the workers' compensation security fund payment
account established pursuant to section eighty-nine-f of the state
finance law, upon filing each quarterly return, a sum equal to one per
centum, provided, however, that the superintendent of financial services
may require each carrier to pay into the fund not more than two per
centum, of its net written premiums, less the amount of dividends paid
to policyholders, for the period covered by such return, except when
suspended in accordance with section one hundred nine of this article.
3. The provisions of this section shall not apply with respect to
policies containing coverage pursuant to subsection (j) of section three
thousand four hundred twenty of the insurance law relating to every
policy providing comprehensive personal liability insurance on a one,
two, three or four family owner-occupied dwelling.
4. The superintendent shall adopt a recoupment rate which shall enable
each carrier to recoup over a reasonable length of time a sum reasonably
calculated to recover the payments by the carrier under this section by
way of a surcharge on premiums charged for insurance policies to which
this section applies. Amounts recouped shall not be considered taxable
for the purposes of article thirty-three of the tax law.
5. The amount of any surcharge on premiums pursuant to subdivison two
of this section shall be separately stated on either a billing or policy
declaration sent to an insured. The superintendent shall determine the
rate of the surcharge and the collection period and these shall be
mandatory for all carriers. Carriers who collect surcharges in excess of
payments made pursuant to this section shall remit the excess to the
superintendent within one hundred twenty days after the end of the
collection period determined by the superintendent. The excess shall
first be applied to reimburse, on an equitable basis, those carriers who
are unable to collect surcharges equal to their paid assessments, and
any excess thereafter shall be retained by the fund to reduce future
assessments.
6. The statement of the amount of surcharge required to be provided by
subdivision five of this section shall include a description of, and
purpose for, the New York Workers' Compensation Security Fund, as
follows:
"Companies writing workers' compensation insurance business in New
York are required to participate in the New York Workers' Compensation
Security Fund. If a company becomes insolvent, the security fund settles
unpaid claims and assesses each insurance company for its fair share.
New York law requires all companies to surcharge policies to recover
these assessments. If your policy is surcharged 'NY surcharge', an
amount will be displayed on your premium notice."
Suspension of payments into fund; temporary surcharge
authorized. 1. When as of the end of any quarterly period the amount of
assets in the fund, as determined by the superintendent of financial
services, including any appropriation to such fund from the general fund
equals or exceeds seventy-four million dollars, no further contributions
to such fund shall be required to be made after that quarterly period,
provided, however, that whenever as of any subsequent quarterly period
the amount of such assets is less than seventy-four million dollars such
contributions shall be resumed at the beginning of the next quarter.
Thereafter the suspension or resumption of contributions shall be
governed by the foregoing provisions. During the period of time in which
any loans to the fund made pursuant to section seven thousand four
hundred thirty-three-a of the insurance law are outstanding, any assets
available after the payment of awards pursuant to section one hundred
nine-c of this article shall be used to repay such loans and not be
counted as assets for purposes of this section.
2. Notwithstanding the provisions of subdivision one of this section,
for each of the three month periods, commencing April first, nineteen
hundred ninety and ending March thirty-first, nineteen hundred
ninety-five, every mutual and every reciprocal carrier shall pay into
the fund a surcharge equal to one per centum of its net written
premiums, less the amount of dividends paid to policyholders, for the
period of such return. Such surcharge shall be in addition to any
payments which may be required pursuant to subdivision two of section
one hundred eight of this chapter.
Administration of fund. The superintendent of financial
services may adopt, amend and enforce all reasonable rules and
regulations necessary for the proper administration of said fund. In the
event any carrier shall fail to file any return or make any payment
required by this article, or in case the superintendent of financial
services shall have cause to believe that any return or other statement
filed is false or inaccurate in any particular, or that any payment made
is incorrect, the superintendent shall have full authority to examine
all the books and records of the carrier for the purpose of ascertaining
the facts and shall determine the correct amount to be paid and may
proceed in any court of competent jurisdiction to recover for the
benefit of the fund any sums shown to be due upon such examination and
determination. Any carrier which fails to make any statement as required
by this article, or to pay any contribution to the fund when due, shall
thereby forfeit to said fund a penalty of five per centum of the amount
of unpaid contribution determined to be due as provided by this article
plus one per centum of such amount for each month of delay, or fraction
thereof, after the expiration of the first month of such delay but the
superintendent, if satisfied that the delay was excusable, may remit all
or any part of such penalty. The superintendent, in his discretion, may
revoke the certificate of authority to do business in this state of any
foreign carrier which shall fail to comply with this article or to pay
any penalty imposed in accordance with this article.
Custody and investment of fund. 1. The fund created by this
article shall be separate and apart from any other fund so created and
from all other state moneys, and the faith and credit of the state of
New York is pledged for its safekeeping. The commissioner of taxation
and finance shall be the custodian of said fund; and all disbursements
from said fund shall be made by the commissioner of taxation and finance
upon vouchers signed by the superintendent of financial services, or his
deputy, as hereinafter provided. The moneys of said fund may be invested
by the commissioner of taxation and finance in the stocks or bonds of
the United States or of this state and in interest bearing certificates
of deposit of a bank or trust company located and authorized to do
business in this state or of a national bank located in this state
secured by a pledge of direct obligations of the United States or of the
state of New York, or in accordance with the provisions of section
ninety-eight-a of the state finance law, in an amount equal to the
amount of such certificates of deposit. The commissioner of taxation and
finance may sell any of the securities or certificates of deposit in
which said fund is invested, if advisable for its proper administration
or in the best interests of such fund, and all earnings from the
investments of such fund shall be credited to such fund.
2. (a) Notwithstanding any provision of law to the contrary, the
superintendent of financial services shall annually no later than
November first in each year, submit to the director of the budget a
request for an appropriation of sixty-seven million dollars. The
governor shall include such amount in a budget bill for the next state
fiscal year. The state comptroller shall encumber the amount so
appropriated before the end of the fiscal year for which any such
appropriation is made. If for any fiscal year commencing on or after
April first, nineteen hundred eighty-three, the governor fails to submit
a budget bill containing an appropriation in the amount requested by the
superintendent of financial services or the legislature fails to
appropriate the amount in a budget bill submitted by the governor for
such fiscal year, the amount appropriated for and encumbered during the
preceding fiscal year shall be payable forthwith to the fund on the
first day of July of such year in the manner prescribed by law,
provided, however, that such amount shall not exceed the amount of
moneys transferred to the general fund from the fund pursuant to the
provisions of chapter fifty-five of the laws of nineteen hundred
eighty-two.
(b) It is hereby found and declared that any appropriation made as
provided for in paragraph (a) of this subdivision shall be deemed an
asset of the fund, and that any transfer of moneys from such fund to the
general fund in accordance with the provisions of chapter fifty-five of
the laws of nineteen hundred eighty-two is deemed a proper and prudent
legal undertaking for any state officer with the responsibility for the
custody or the investment of the assets of the fund, notwithstanding any
other provision of law to the contrary.
Payments from fund. 1. The final award for compensation or
death benefits, or installments thereof, or of payment of benefits into
the special funds created under the provisions of subdivisions eight and
nine of section fifteen and section twenty-five-a of this chapter
heretofore or hereafter granted pursuant to this chapter, or the payment
of a claim made against an insured under the employer's liability
insurance portion of the insured's standard New York workers'
compensation and employer's liability insurance policy, which has
remained or shall remain due and unpaid for thirty days, by reason of
default by an insolvent carrier, shall be paid from the fund in the
manner provided in this section. Benefits or compensation pursuant to
the longshore and harbor workers' compensation act shall be payable only
with respect to coverage of risks located or resident in this state;
provided further that the insolvency, bankruptcy or dissolution of the
insured shall effect a termination of security fund benefits provided
hereunder. The chairman or any person in interest may file with the
superintendent of financial services an application for payment of
compensation or death benefits, special fund benefits or liability
claims from the fund on a form to be prescribed and furnished by the
superintendent. If there has been an award, final or otherwise, a
certified copy thereof shall accompany the application. The
superintendent of financial services shall thereupon certify to the
commissioner of taxation and finance such award for payment according to
the terms of the same.
2. Payments from the fund shall be made by the commissioner of
taxation and finance on the said certificate of the superintendent of
financial services, and no payment shall be made by the commissioner of
taxation and finance in excess of the amount certified.
3. Payment of the award from the fund shall not give the fund any
right of recovery against the employer.
4. An employer may pay any such award or part thereof in advance of
payment from the fund and shall thereupon be subrogated to the rights of
the employee or other party in interest against such fund to the extent
of the amount so paid.
5. The commissioner of taxation and finance as custodian of the fund
shall be entitled to recover the sum of all liabilities, including loss
adjustment expenses relating to such liabilities, of such insolvent
carrier assumed by such fund from such carrier, its receiver,
liquidator, rehabilitator or trustee in bankruptcy and may prosecute an
action or other proceedings therefor. All moneys recovered in any such
action or proceedings shall forthwith be placed to the credit of the
fund by the commissioner of taxation and finance to reimburse the fund
to the extent of the moneys so recovered and paid.
6. The provisions of section twenty-six of this chapter shall not
apply in the case of a failure to pay any compensation when due by
reason of the default, after the effective date of this article, of an
insolvent carrier as defined in this article, and the provisions of
section thirty-four of this chapter shall not apply to compensation
insured by any carrier as defined in this article if the compensation is
paid by the fund.
Notification of insolvency. Duties of chairman. Forthwith
upon any carrier becoming an insolvent carrier, the superintendent of
financial services shall so notify the chairman, who shall immediately
advise the superintendent (a) of all claims for compensation pending or
thereafter made against an employer insured by such insolvent carrier or
against such insolvent carrier; (b) of all unpaid or continuing awards
and decisions made upon claims prior to or after the date of such notice
from the superintendent; and (c) of all appeals from or applications for
modification or rescission or review of such awards or decisions.
Rights and duties of superintendent of financial services as
administrator of the fund. The superintendent of financial services may
designate or appoint a duly authorized representative or representatives
to appear and defend an insured against a liability claim under the
employer's liability portion of the standard New York workers'
compensation and employer's liability insurance policy, and to appear
and defend before the board any or all claims for compensation or
benefits against an employer insured by an insolvent carrier or against
such insolvent carrier. The superintendent of financial services shall
have, as of the date of the insolvency of any carrier, only all the
rights and duties which the insurance carrier would have had with
respect to awards made or claims for compensation or benefits filed or
pending, or pending liability claims, if it had not become insolvent.
For the purposes of this article the superintendent shall have power to
employ such counsel, clerks and assistants as may by him be deemed
necessary, and to give each of such persons such powers to assist him as
he may consider wise.
Expenses of administration. The expense of administering the
fund shall be paid out of the fund. Prior to the first days of January,
April, July and October there shall be submitted to the director of the
budget for approval an estimated budget of expenditures for the
succeeding three months. There may not be expended for the purpose of
administering the fund more than the amounts as authorized by the
director of the budget. The superintendent of financial services shall
serve as administrator of the fund without additional compensation, but
may be allowed and paid from the fund expenses incurred in the
performance of his duties in connection with the fund. The compensation
of those persons employed by the superintendent of financial services,
within the amounts approved by the director of the budget, shall be
deemed administration expense payable from the fund. The superintendent
of financial services shall include in his annual report to the
legislature a statement of the expense of administering the fund for the
preceding year.
ARTICLE 7 Miscellaneous Provisions
Record and report of injuries by employers. 1. An employer,
or a third party designated by the employer, shall record any injury or
illness incurred by one of its employees in the course of employment
using the form prescribed by the chair for reporting injuries under
subdivision two of this section. Such form, a copy of which shall be
provided to the injured employee upon request, shall be maintained by
the employer, or a third party designated by the employer, for at least
eighteen years, and shall be subject to review by the chair at any time.
Such form need not be filed with the chair unless the status of such
injury or illness changes resulting in a loss of time from regular
duties or in medical treatment which would require reporting in
accordance with subdivision two of this section.
2. An employer, or a third party designated by the employer, shall
file with the chair of the workers' compensation board and with the
carrier if the employer is insured, upon a form prescribed by the chair,
a report of any accident resulting in personal injury which has caused
or will cause a loss of time from regular duties of one day beyond the
working day or shift on which the accident occurred, or which has
required or will require medical treatment beyond ordinary first aid or
more than two treatments by a person rendering first aid. Such report
shall state the name and nature of the business of the employer, the
location of its establishment or place of work, the name, address and
occupation of the injured employee, the time, nature and cause of the
injury and such other information as may be required by the chair. Such
report shall be filed within ten days after the occurrence of the
accident. An employer shall furnish a report of an occupational disease
incurred by an employee in the course of his or her employment, to the
chair of the workers' compensation board, and to the carrier if the
employer is insured, upon the same form. The carrier, within fourteen
days of receipt of the report or accompanying the initial check
forwarded to the employee, whichever is earlier, or a self-insured
employer, within fourteen days of transmitting the report to the chair
or accompanying the initial check forwarded to the employee, whichever
is earlier, shall provide the injured employee or, in the case of death,
his or her dependents with a written statement of their rights under
this chapter, in a form prescribed by the chair. An employer shall file
a report of any other accident resulting in personal injury incurred by
its employee in the course of employment, upon the same form, whenever
directed by the chair.
3. Any injury or illness which is not required to be reported in
accordance with subdivision two of this section, shall not be used as a
basis for determining experience modification rates, provided the
employer pays in the first instance or reimburses the employer's insurer
for the treatment rendered to the employee.
4. An employer who refuses or neglects to make a report or to keep
records as required by this section shall be guilty of a misdemeanor,
punishable by a fine of not more than one thousand dollars. The board
or chair may impose a penalty of not more than two thousand five hundred
dollars upon an employer who refuses or neglects to make such report.
5. The chair shall be authorized to promulgate regulations necessary
to carry out the provisions of this section.
Confidentiality of workers' compensation records. 1.
Restrictions on disclosure. (a) Except upon the order or subpoena of a
court of competent jurisdiction, or subpoena of a law enforcement
agency, or subpoena properly issued under the authority of an
administrative agency, or in accordance with subdivision two or three of
this section, no workers' compensation record shall be disclosed,
redisclosed, released, disseminated or otherwise published by an
officer, member, employee or agent of the board to any other person.
(b) For purposes of this section, (i) "record" means a claim file, a
file regarding an injury or complaint for which no claim has been made,
and/or any records maintained by the board in electronic databases in
which individual claimants or workers are identifiable, or any other
information relating to any person who has heretofore or hereafter
reported an injury or filed a claim for workers' compensation benefits,
including a copy or oral description of a record which is or was in the
possession or custody of the board, its officers, members, employees or
agents.
(ii) "person" means any natural person, corporation, association,
partnership, or other public or private entity.
(iii) "individually identifiable information" means any data
concerning any injury, claim, or potential claim that is linked to an
identifiable employee or other natural person.
2. Authorized disclosure. Workers' compensation records which contain
individually identifiable information may, unless otherwise prohibited
by law, be disclosed to:
(a) those officers, members and employees of, and to those who
contract with, the board if such disclosure is necessary to the
performance of their official duties pursuant to a purpose of the board
required to be accomplished by statute or executive order or otherwise
necessary to perform their lawful duties;
(b) officers or employees of another governmental unit, or agents
and/or contractors of the governmental unit at the request and/or
direction of the governmental unit, if the information sought to be
disclosed is necessary for the receiving governmental unit to operate a
program or carry out a purpose specifically authorized by statute,
including the investigation of a fraud, criminal offense or licensing or
regulatory violation, or to act upon an application for benefits
submitted by the person who is the subject of the record;
(c) a person who is the subject of the particular record for which
disclosure is sought; or an attorney or licensed representative who is
retained by the person who is the subject of the particular record for
which disclosure is sought;
(d) a workers' compensation insurance carrier, employer or the state
insurance fund, including officers, employees, legal representatives,
agents, reinsurers and contractors thereof, where such individuals are
acting within the scope of their duties in evaluating, processing or
settling a claim involving the subject of the particular record for
which disclosure is sought, and where such carrier, employer or fund is
a party to such claim;
(e) a judicial or administrative officer or employee in connection
with an administrative or judicial proceeding; and
(f) a person engaged in bona fide statistical research, including but
not limited to actuarial studies and health and safety investigations,
which are authorized by statute or regulation of the board or other
governmental agency. Individually identifiable information shall not be
disclosed unless the researcher has entered into a confidentiality
agreement with the board and has agreed that any research findings will
not disclose individually identifiable information; and
(g) an insurer or health benefit plan including officers, employees,
legal representatives, agents, and contractors thereof, where such
individuals are acting within the scope of their duties in evaluating
compensation records for the purpose of determining entitlement to
reimbursement for payments made for medical and/or hospital services
pursuant to subdivisions (d) and (h) of section thirteen of this
chapter.
(h) a treating physician or other health care provider who has
rendered treatment to a claimant, or is seeking authorization for
treatment or special services, (i) where the information sought to be
disclosed relates to (a) compensability of a claim related to such
treatment, (b) reimbursement for such treatment, or (c) authorization
for special services; or (ii) where the information to be disclosed is
limited to notice to the treating physician or other health care
provider that a waiver agreement has been initiated pursuant to section
thirty-two of this chapter.
3. Individual authorization. Notwithstanding the restrictions on
disclosure set forth under subdivision one of this section, a person who
is the subject of a workers' compensation record may authorize the
release, re-release or publication of his or her record to a specific
person not otherwise authorized to receive such record, by submitting
written authorization for such release to the board on a form prescribed
by the chair or by a notarized original authorization specifically
directing the board to release workers' compensation records to such
person. However, in accordance with section one hundred twenty-five of
this article, no such authorization directing disclosure of records to a
prospective employer shall be valid; nor shall an authorization
permitting disclosure of records in connection with assessing fitness or
capability for employment be valid, and no disclosure of records shall
be made pursuant thereto. It shall be unlawful for any person to
consider for the purpose of assessing eligibility for a benefit, or as
the basis for an employment-related action, an individual's failure to
provide authorization under this subdivision.
4. It shall be unlawful for any person who has obtained copies of
board records or individually identifiable information from board
records to disclose such information to any person who is not otherwise
lawfully entitled to obtain these records.
5. Any person who knowingly and willfully obtains workers'
compensation records which contain individually identifiable information
under false pretenses or otherwise violates this section shall be guilty
of a class A misdemeanor and shall be subject upon conviction, to a fine
of not more than one thousand dollars.
6. In addition to or in lieu of any criminal proceeding available
under this section, whenever there shall be a violation of this section,
application may be made by the attorney general in the name of the
people of the state of New York to a court or justice having
jurisdiction by a special proceeding to issue an injunction, and upon
notice to the defendant of not less than five days, to enjoin and
restrain the continuance of such violations; and if it shall appear to
the satisfaction of the court or justice that the defendant has, in
fact, violated this section, an injunction may be issued by such court
or justice, enjoining and restraining any further violation, without
requiring proof that any person has, in fact, been injured or damaged
thereby. In any such proceeding, the court may make allowances to the
attorney general as provided in paragraph six of subdivision (a) of
section eighty-three hundred three of the civil practice law and rules,
and direct restitution. Whenever the court shall determine that a
violation of this section has occurred, the court may impose a civil
penalty of not more than five hundred dollars for the first violation,
and not more than one thousand dollars for the second or subsequent
violation within a three year period. In connection with any such
proposed application, the attorney general is authorized to take proof
and make a determination of the relevant facts and to issue subpoenas in
accordance with the civil practice law and rules.
Reporting of injuries to employer. Every farm labor
contractor, foreman or supervisor of farm laborers who has notice of any
injury to a farm laborer incurred during the course of employment shall
be required to inform the employer, owner or operator of a farm of any
such injury.
Information to be furnished by employer. Every employer shall
furnish the chairman, upon request, any information required by him to
carry out the provisions of this chapter. The chairman or board may
examine under oath any employer, officer, agent or employee. An employer
or an employee receiving from the chairman a blank with directions to
file the same shall cause the same to be properly filled out so as to
answer fully and correctly all questions therein, or if unable to do so,
shall give good and sufficient reasons for such failure. Answers to such
questions shall be subscribed by the employer or the employee and
affirmed as true under the penalties of perjury and returned to the
chairman within the period fixed by the chairman therefor.
Inspection of records of employers. All books, records and
payrolls of the employers, showing or reflecting in any way upon the
amount of wage expenditures of such employers shall always be open for
inspection by the chairman for the purpose of ascertaining the
correctness of the wage expenditure and number of men employed and such
other information as may be necessary for the uses and purposes of the
chairman in the administration of this chapter.
Interstate commerce. The provisions of this chapter shall apply
to employers and employees engaged in intrastate, and also interstate or
foreign commerce, for whom a rule of liability or method of compensation
has been or may be established by the congress of the United States,
only to the extent that their mutual connection with intrastate work may
and shall be clearly separable and distinguishable from interstate or
foreign commerce, provided that awards according to the provisions of
this chapter may be made by the board in respect of injuries subject to
the admiralty or other federal laws in case the claimant, the employer
and the insurance carrier waive their admiralty or interstate commerce
rights and remedies, and the state insurance fund or other insurance
carrier may assume liability for the payment of such awards under this
chapter.
Penalties for fraudulent practices. 1. Any person who,
knowingly and with intent to defraud presents, causes to be presented,
or prepares with knowledge or belief that it will be presented to or by
an insurer or purported insurer, or any agent thereof, any written
statement as part of, or in support of, an application for the issuance
of or the rating of an insurance policy for compensation insurance, or a
claim for payment or other benefit pursuant to a compensation policy
which he or she knows to: (i) contain a false statement or
representation concerning any fact material thereto; or (ii) omits any
fact material thereto, shall be guilty of a class E felony. Upon
conviction, the court in addition to any other authorized sentence, may
order forfeiture of all rights to compensation or payments of any
benefit, and may also require restitution of any amount received as a
result of a violation of this subdivision.
2. An employer or carrier, or any employee, agent, or person acting on
behalf of an employer or carrier, who knowingly makes a false statement
or representation as to a material fact in the course of reporting,
investigation of, or adjusting a claim for any benefit or payment under
this chapter for the purpose of avoiding provision of such payment or
benefit shall be guilty of a class E felony.
3. A person who knowingly makes a false statement or representation as
to a material fact for the purpose of obtaining, maintaining or renewing
insurance under this chapter, whether for himself or herself or for any
other person or entity or for the purpose of evading the requirements of
section fifty of this chapter shall be guilty of a class E felony. In
addition to any other remedy, the carrier providing insurance shall be
entitled to restitution of any amount obtained or withheld as a result
of a violation of this subdivision.
4. Consistent with the provisions of the criminal procedure law, in
any prosecution alleging a violation of subdivision one, two or three of
this section, or sections fifty-two and one hundred thirty-one of this
chapter, in which the act or acts alleged may also constitute a
violation of the penal or other law, the prosecuting official may charge
a person pursuant to the provisions of this section and in the same
accusatory instrument with a violation of such other law.
5. A person (a) who is convicted of a second or subsequent offense
under this section within ten years of the prior conviction, or (b) who
violates any provision of this section concerning two or more claimants,
shall be guilty of a class D felony.
Disqualification for false representation. 1. If for the
purpose of obtaining compensation pursuant to section fifteen of this
chapter, or for the purpose of influencing any determination regarding
any such payment, a claimant knowingly makes a false statement or
representation as to a material fact, such person shall be disqualified
from receiving any compensation directly attributable to such false
statement or representation. In addition, as determined by the board,
the claimant shall be subject to a disqualification or an additional
penalty up to the foregoing amount directly attributable to the false
statement or representation. Any penalty monies shall be paid into the
state treasury.
2. If with the knowledge of a claimant, another person knowingly makes
a false statement or representation as to a material fact for the
purpose of assisting a claimant in either obtaining, or influencing any
determination regarding compensation pursuant to section fifteen of this
chapter, such claimant may be disqualified from receiving any
compensation directly attributable to such false statement or
representation. In addition, as determined by the board, the claimant
may be subject to a disqualification or an additional penalty up to the
foregoing amount directly attributable to the false statement or
representation. Any penalty monies shall be deposited to the credit of
the general fund of the state.
3. If the board or any court having jurisdiction over proceedings in
respect of any claim for compensation determines that the proceedings in
respect of such claim, including any appeals, have been instituted or
continued without reasonable ground:
(i) the cost of such proceedings shall be assessed against the party
who has so instituted or continued the proceedings, which shall be
payable to the board for administrative expenses pursuant to section one
hundred fifty-one of this chapter;
(ii) reasonable attorneys' fees shall be assessed against an attorney
or licensed representative who has instituted or continued proceedings
without reasonable grounds, which assessment shall be payable to the
board for administrative expenses pursuant to section one hundred
fifty-one of this chapter. Fees awarded under this provision may not be
recouped from the party; and
(iii) such assessments shall be in addition to any other penalty
permitted under this chapter.
Readjustment of an employer's experience rating. If pursuant
to section one hundred fourteen-a of this chapter, benefits or payments
are suspended or otherwise prohibited, and so long as the employer has
not been found to be in violation of section one hundred fourteen of
this chapter, such employer's experience rating, or where the employer
is not experience rated, any surcharges resulting from the fraudulent
claim, shall be readjusted to reflect the position in which it would
have been, or the experience rating which it would have had, had such
fraudulent claim not been made.
Multiple offenses. Any provision of this chapter which
imposes additional penalties for a second or subsequent offense shall
apply whenever the prior offense was committed by a substantially owned
affiliated entity of the party subject to penalty.
Limitation of time. No limitation of time provided in this
chapter shall run as against any person who is mentally incompetent or a
minor so long as he has no committee or guardian.
Sessions. The offices of the chairman and the board shall be
open for business during all business hours of all days except Sundays
and legal holidays. All sessions of the board shall be public. The
records of the board shall contain a record of each case considered, and
all awards, decisions or orders with respect thereto. For convenience
of parties and prevention of delay or expense, the board may hold
sessions in cities other than Albany.
Rules. 1. The board may adopt reasonable rules consistent with
and supplemental to the provisions of this chapter and the labor law.
The chairman may make reasonable regulations consistent with the
provisions of this chapter and the labor law.
2. Notwithstanding any other provision of this chapter, the board
shall, at least forty-five days prior to the adoption, amendment,
suspension or repeal of any rule or regulation of the board or of the
chairman, give or cause to be given notice and offer any person or other
agency an opportunity to present data, views or arguments, in accordance
with the provisions of subdivision one of section two hundred two of the
state administrative procedure act, providing, however, that the
inadvertent failure to mail notice to any person or agency as provided
therein shall not invalidate any rule or regulation adopted thereunder.
A proceeding to contest any rule on the grounds of noncompliance with
the procedural requirements of such subdivision must be commenced within
four months from the effective date of the rule or regulation.
Technical rules of evidence or procedure not required. The
chairman or board in making an investigation or inquiry or conducting a
hearing shall not be bound by common law or statutory rules of evidence
or by technical or formal rules of procedure, except as provided by this
chapter; but may make such investigation or inquiry or conduct such
hearing in such manner as to ascertain the substantial rights of the
parties. Declarations of a deceased employee concerning the accident
shall be received in evidence and shall, if corroborated by
circumstances or other evidence, be sufficient to establish the accident
and the injury.
Effect of findings and determinations in subsequent
proceedings. With respect to an action for a workers' compensation claim
permissible under this chapter, no finding or decision by the workers'
compensation board, judge or other arbiter shall be given collateral
estoppel effect in any other action or proceeding arising out of the
same occurrence, other than the determination of the existence of an
employer employee relationship.
Subpoenas. A subpoena or a subpoena duces tecum may be signed
and issued by the chairman, a member of the board, referee or such other
officer as may be designated by the chairman. A subpoena or a subpoena
duces tecum may also be signed and issued by any attorney and
counsellor-at-law appearing before the board on behalf of a claimant or
other party. A subpoena issued under this section shall be regulated by
civil practice law and rules.
Discrimination against employees. It shall be unlawful for any
employer or his or her duly authorized agent to discharge or fail to
reinstate pursuant to section two hundred three-b of this chapter, or in
any other manner discriminate against an employee as to his or her
employment because such employee has claimed or attempted to claim
compensation from such employer, requested a claim form for injuries
received in the course of employment, or claimed or attempted to claim
any benefits provided under this chapter or because he or she has
testified or is about to testify in a proceeding under this chapter and
no other valid reason is shown to exist for such action by the employer.
Any complaint alleging such an unlawful discriminatory practice must
be filed within two years of the commission of such practice. Upon
finding that an employer has violated this section, the board shall make
an order that any employee so discriminated against shall be restored to
employment or otherwise restored to the position or privileges he or she
would have had but for the discrimination and shall be compensated by
his or her employer for any loss of compensation arising out of such
discrimination together with such fees or allowances for services
rendered by an attorney or licensed representative as fixed by the
board. Any employer who violates this section shall be liable to a
penalty of not less than one hundred dollars or more than five hundred
dollars, as may be determined by the board. All such penalties shall be
paid into the state treasury. All penalties, compensation and fees or
allowances shall be paid solely by the employer. The employer alone and
not his or her carrier shall be liable for such penalties and payments.
Any provision in an insurance policy undertaking to relieve the employer
from liability for such penalties and payments shall be void.
An employer found to be in violation of this section and the aggrieved
employee must report to the board as to the manner of the employer's
compliance within thirty days of receipt of a final determination. In
case of failure to report on compliance, or failure to comply with an
order or penalty of the board within thirty days after the order or
notice of penalty is served, except where timely application to the
board for a modification, rescission or review of such order or penalty
has been filed under section twenty-three of this chapter, the chair in
any such case or, on the chair's consent, any party may enforce the
order or penalty in a like manner as an award of compensation.
Depositions. The chairman or board may cause depositions of
witnesses residing within or without the state to be taken in the manner
prescribed by law for like depositions in civil actions in the supreme
court.
Proof of dependency in foreign countries. In cases involving
the dependency of noncitizens residing in foreign countries, transcripts
of birth or marriage certificates, also documents and affidavits,
certified by a local official or local magistrate and authenticated as
to such official or magistrate by the secretary of state or other
official having charge of foreign affairs, or a United States consul, in
said foreign country, may be received in evidence, but in all such cases
proof of present existence and of dependency may be made by the personal
appearance of each and all persons claiming relationship to or
dependence upon a deceased worker under the provisions of sections
sixteen and seventeen of this chapter, before a diplomatic or consular
officer of the United States, and statements made to or evidence
presented before such diplomatic or consular officer under oath may be
received in evidence in whole or in part by the board upon any such
claim. Questions regarding admissibility and adequacy of evidence
arising in connection with proceedings before the consul shall be
determined by the board. The board may by rule prescribe the conditions
under which proofs other than personal appearance before a diplomatic or
consular officer of the United States may be accepted as proof of the
facts of existence, relationship and dependency.
Transcripts. A copy of the testimony, evidence and procedure of
any investigation, or a particular part thereof, transcribed by a
stenographer in the employ of the board and certified by such
stenographer to be true and correct may be received in evidence with the
same effect as if such stenographer were present and testifying to the
facts so certified. A copy of such transcript shall be furnished to any
party upon payment of the fee for transcripts of similar minutes in the
supreme court.
Jurisdiction of board to be continuing. The power and
jurisdiction of the board over each case shall be continuing, and it
may, from time to time, make such modification or change with respect to
former findings, awards, decisions or orders relating thereto, as in its
opinion may be just, except that, where the employer has secured the
payment of compensation in accordance with the provisions of section
fifty of this chapter, no claim for compensation or for death benefits
that has been disallowed after a trial on the merits, or that has been
otherwise disposed of without an award after the parties in interest
have been given due notice of hearing or hearings and opportunity to be
heard and for which no determination was made on the merits, shall be
reopened after a lapse of seven years from the date of the accident or
death. Nor shall any award of compensation or death benefits be made
against the special fund provided in section twenty-five-a of this
chapter or against an employer or an insurance carrier where application
therefor is made after a lapse of eighteen years from the date of the
injury or death and also a lapse of eight years from the date of the
last payment of compensation.
Reporting. 1. The chair shall prescribe the form and format for
the collection and dissemination of information and data as the
administration of this chapter requires. In the event the proper format
requires the submission of a complete paper document, the chair shall
have distributed such blank forms, including forms of notice and claims
and forms for processing injury, death, medical or other attendance or
treatment, employment or wage earnings as are necessary.
2. Insurance carriers shall constantly keep on hand, at their own
expense, a sufficient supply of such forms or, in the event of
electronic transfer, be responsible for all charges associated with
transmission of such information.
3. Nothing stated above shall preclude the chair from requiring the
submission or dissemination of notices or reports in an electronic or
typed form, with the exact format to be prescribed by the chair.
Job discrimination prohibited based on prior receipt of
benefits. 1. It shall be unlawful for any employer to inquire into, or
to consider for the purpose of assessing fitness or capability for
employment, whether a job applicant has filed for or received benefits
under this chapter, or to discriminate against a job applicant with
regard to employment on the basis of that claimant having filed for or
received benefits under this chapter, or because the claimant is an
injured veteran. An individual aggrieved under this subdivision may
initiate proceedings in a court of competent jurisdiction seeking
damages, including reasonable attorney fees, for violation of this
subdivision.
2. An employer who violates the provisions of subdivision one of this
section shall be guilty of a misdemeanor, and upon conviction shall be
punished, except as in this chapter or in the penal law otherwise
provided, by a fine of not more than one thousand dollars, and subject
to the debarment provisions of section one hundred forty-one-b of this
chapter.
Discriminating against an injured veteran. 1. An insurance
carrier is guilty of unlawfully discriminating against an injured
veteran when with respect to workers' compensation insurance, the
insurer knowingly and intentionally (a) discriminates against an injured
veteran because of the veteran's injury or status as a veteran, or (b)
encourages or causes an employer or other entity to unlawfully
discriminate against an injured veteran in hiring or discharging
decisions because of the veteran's injury or status as a veteran.
2. For the purpose of this section (a) "injured veteran" shall mean an
individual who suffered an injury as a result of his or her service in
the armed forces; and (b) "insurance carrier" shall be defined as in
subdivision twelve of section two of this chapter.
3. Discriminating against an injured veteran is a class A misdemeanor.
4. Any person convicted under this section shall be subject to the
debarment provisions of section one hundred forty-one-b of this chapter.
Construction. This chapter shall be read and construed in
connection with the labor law.
Unconstitutional provisions. If any section or provision of
this chapter be decided by the courts to be unconstitutional or invalid,
the same shall not affect the validity of the chapter as a whole or any
part thereof other than the part so decided to be unconstitutional or
invalid.
Actions or causes of action pending. This act shall not affect
any action pending or cause of action existing or which accrued prior to
July first, nineten hundred and twenty-two.
Workmen's compensation premiums shall be deemed preferred
claims. All premiums and interest charges on account of policies
insuring employers against liability under this chapter which may be due
to the state insurance fund, or any stock corporation or mutual
association authorized to transact the business of insurance in this
state, and all judgments recovered by the state insurance fund or any
such insurance corporation or association against any employer on
actions brought under any such policy, shall be deemed preferred claims
in all insolvency or bankruptcy proceedings, trustee proceedings for
administration of estates and receiverships involving the employer
liable therefor or the property of such employer, provided however that
claims for wages shall receive prior preference in all such proceedings.
Payroll records. (1) Every employer subject to the provisions
of this chapter shall keep a true and accurate record of the number of
his or her employees, the classification of employees, information
regarding employee accidents and the wages paid by him or her for a
period of four years after each entry therein, which records shall be
open to inspection at any time, and as often as may be necessary to
verify the same by investigators of the board, by the authorized
auditors, accountants or inspectors of the carrier with whom the
employer is insured, or by the authorized auditors, accountants or
inspectors of any workers' compensation insurance rating board or bureau
operating under the authority of the insurance law and of which board or
bureau such carrier is a member or the group trust of which the employer
is a member. Any and all records required by law to be kept by such
employer upon which the employer makes or files a return concerning
wages paid to employees shall form part of the records described in this
section and shall be open to inspection in the same manner as provided
in this section. Any employer who shall fail to keep such records, who
shall willfully fail to furnish such record as required in this section
or who shall falsify any such records, shall be guilty of a misdemeanor
and subject to a fine of not less than five nor more than ten thousand
dollars in addition to any other penalties otherwise provided by law,
except that any such employer that has previously been subject to
criminal penalties under this section within the prior ten years shall
be guilty of a class E felony, and subject to a fine of not less than
ten nor more than twenty-five thousand dollars in addition to any
penalties otherwise provided by law.
(2) Employers subject to subsection (e) of section two thousand three
hundred four of the insurance law and subdivision two of section
eighty-nine of this chapter shall keep a true and accurate record of
hours worked for all construction classification employees. The willful
failure to keep such record, or the knowing falsification of any such
record, may be prosecuted as insurance fraud in accordance with the
provisions of section 176.05 of the penal law.
(3) The chair, upon finding that an employer has failed to keep true
and accurate records as required by this section, may impose upon such
employer, in addition to all other penalties, fines or assessments
provided for in this chapter, one 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 violation, 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 calculation of the penalty
provided in this section, the imputed weekly payroll for each employee,
corporate officer, sole proprietor, or partner shall be the New York
state average weekly wage, multiplied by 1.5. Where the employer is a
corporation, the corporation and any of the following shall be liable
for the penalty provided in this subdivision: the president, secretary
and treasurer. 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 application.
Criminal prosecution; certifications. 1. The attorney-general
may prosecute every person charged with the commission of a criminal
offense in violation of this chapter, or of any rule, regulation or
order made thereunder, or in violation of the laws of this state,
applicable to or arising out of any provision of this chapter or any
rule, regulation or order made thereunder.
2. Every check or draft issued directly to a benefit recipient or
provider of health services in payment of a claim made pursuant to this
chapter shall contain a printed statement on the reverse side
immediately above the signature line for the first endorsement
indicating that in endorsing the check or draft for payment the benefit
recipient or provider of health services is certifying that such person
is entitled to such payment and that circumstances which would affect
entitlement to receive the payment have not changed. The statement shall
be in a form prescribed by the workers' compensation board after
consultation with the superintendent of financial services.
3. The check or draft described in subdivision two of this section
shall be claim forms within the meaning of section 176.00 of the penal
law and subsection (d) of section four hundred three of the insurance
law.
Refunds and credits. In any case where an award, an assessment
or a penalty has been made and paid directly into the state treasury or
into one of the special funds created under the provisions of this
chapter, and it is thereafter determined by the chairman, the board or
by a court of competent jurisdiction that such award, assessment or
penalty, or any portion thereof was erroneously, illegally, or
improperly made, the employer or his insurance carrier who made any such
payment may be reimbursed, or allowed a credit, from any moneys in the
state treasury not otherwise appropriated or from the special fund to
which the payment had been made, for such amount, without costs or
interest, as may be determined by the chairman, the board or by a court
of competent jurisdiction; provided, however, that a request for such
reimbursement is filed with the chairman within three months after such
determination, on the audit and warrant of the comptroller on
certification of the chairman.
Workplace safety and loss prevention program; certification of
safety and loss management specialists. 1. The commissioner of labor, in
consultation with the superintendent of financial services and the chair
of the board shall develop a compulsory workplace safety and loss
prevention program for all employers whose most recent annual payroll is
in excess of eight hundred thousand dollars and whose most recent
experience rating exceeds the level of 1.2. The commissioner of labor
shall promulgate rules and regulations for the implementation of safety,
drug and alcohol prevention, and return to work incentive programs.
2. The commissioner of labor shall provide written notification to
employers whose most recent annual payroll is in excess of eight hundred
thousand dollars and whose most recent experience rating exceeds the
level of 1.2 that they are required to undergo a workplace safety and
loss prevention consultation and written evaluation. Copies of the
written notification shall be provided to the department of labor and
the employer's insurer. The employer must arrange for the consultation
and evaluation within thirty days after receiving the notification and
must within ten days thereafter notify its insurer and the department of
labor in writing of the means by which the evaluation is to be
accomplished. The employer must provide its insurer and the department
of labor with a copy of the evaluation within thirty days after
receiving it from the safety and loss consultant. Any remedial action
recommended in the evaluation must be implemented by the employer within
a reasonable period of time, but not to exceed six months after the
employer receives the evaluation. The insurer, within sixty days after
the expiration of such six month period, shall conduct an inspection to
ascertain whether the recommended remedial action has been implemented,
and the insurer shall within forty-five days thereafter provide to the
employer and the department of labor a copy of its inspection report.
3. If the employer does not arrange for a consultation and evaluation
or fails to implement recommended remedial action within the times
prescribed, the insurer shall surcharge the employer's manual rate
premium by .05 for the next ensuing policy period, and so long as
non-compliance continues there shall be an additional .05 surcharge for
each year thereafter of non-compliance. An employer may challenge an
insurer's determination that the employer has not taken the recommended
remedial action by appeal to the department of labor on notice to the
insurer. The department of labor shall thereafter conduct an independent
inspection and its determination of compliance or non-compliance shall
be final. However, such appeal may not be entertained if the employer
has not paid its billed premium including any surcharge thereof.
4. Employers required to participate in the workplace safety and loss
prevention program established by this section shall be permitted to
utilize the services of either the department of labor, or a private
safety and loss consultant which has been certified by the department of
labor. Private safety and loss consultants may charge employers a fee
for their services.
6. Safety, drug and alcohol prevention, and return to work incentive
programs. Employers insured through the state insurance fund (except
those who are current policyholders in a recognized safety group) or any
other insurer that issues policies of workers' compensation insurance,
shall be eligible for a credit in workers' compensation insurance
premiums if they:
a. pay annual workers' compensation insurance premiums of at least
five thousand dollars; and
b. maintain an experience rating of under 1.30 for the year preceding
and the years in which the credit has been applied for provided that no
insured required to implement a safety program pursuant to subdivision
one of this section shall be eligible for a premium credit under this
subdivision; and
c. implement any of the following:
(1) a safety incentive plan, that has been recommended by a safety and
loss management specialist after such specialist has been certified by
the commissioner of labor, or if such plan otherwise conforms to
regulations promulgated by the commissioner of labor;
(2) a drug and alcohol prevention program that conforms to regulations
issued by the commissioner of labor, in consultation with the office of
alcoholism and substance abuse services; and
(3) a return to work program that conforms to regulations issued by
the commissioner of labor.
The credit for each such program shall be established by regulations
issued by the superintendent of financial services. Such regulations
shall include provisions for recertification on an annual basis.
7. An individual self-insured employer shall be eligible for a
reduction in the security deposit provided for in subdivision three of
section fifty of this chapter, and a member of a group shall be eligible
for a credit against their contributors if such credit is authorized by
the chair and in accordance with limitations set by the chair, if such
employer has implemented any or all of the following: a. a safety
incentive plan that has been recommended by a safety and loss management
specialist after such specialist has been certified by the commissioner
of labor or if such plan otherwise conforms to regulations promulgated
by the commissioner of labor;
b. a drug and alcohol prevention program that conforms to regulations
issued by the commissioner of labor, in consultation with the office of
alcoholism and substance abuse services; and
c. a return to work program that conforms to regulations issued by the
commissioner of labor.
The credit for each program shall be no greater than established by
regulations issued by the superintendent of financial services or such
lesser amount as determined by the chair of the board to be necessary to
assure that the deposit remains sufficient to secure the employer's
liability to pay the compensation provided in this chapter. The chair,
in consultation with the superintendent of financial services, shall
adopt regulations which provide for recertification on an annual basis.
8. The commissioner of labor shall: (i) receive and review
applications from applicants for certification as safety and loss
management specialists; and (ii) certify persons as safety and loss
management specialists; and (iii) revoke certification of safety and
loss management specialists for just cause.
9. The commissioner of labor shall monitor all safety incentive plans
implemented by employers. As part of this responsibility, the board
shall insure that employee representatives are involved in the
development of such plans through meetings and discussions with the
respective certified safety and loss management specialist.
10. The commissioner of labor, in consultation with the superintendent
of financial services, shall promulgate rules and regulations for the
certification of safety and loss management specialists. Such rules and
regulations shall include provisions that outline the minimum
qualifications for safety and loss management specialists, procedures
for certification, causes for revocation or suspension of certification
and appropriate administrative and judicial review procedures, and
violations and penalties for misuse of certification by certified safety
and loss management specialists.
Premium credits for safety investment. 1. An employer insured
by a licensed insurer or the state insurance fund for workers'
compensation insurance may apply for a credit against the premiums for
such coverage provided such employer is not currently receiving any
statutory safety incentive or sanction authorized under this chapter for
amounts invested by such employer in the creation of a safer work
environment which meets the requirements of this section. The credit may
be applied for a renewable period not to exceed three years. For any one
year, the credit shall equal, if actuarially appropriate, an amount up
to five percent of the total amount invested as calculated under the
provisions of this section but shall not exceed fifteen percent of such
employer's annual earned premium for that year in accordance with
workers' compensation rating board manual rates. An employer applying
for such credit must provide evidence required by rules or regulations
promulgated by the superintendent of financial services that the
investment would result in a safer work environment, with such evidence
to include a written opinion by a certified safety professional, a
certified industrial hygienist or a licensed professional engineer
describing the items included in the investment and an analysis of how
they will substantially enhance the safety of the work environment.
2. It shall be the sole responsibility of the superintendent of
financial services, with the assistance of a committee, to determine
whether an employer who has made an application is eligible for a
premium credit and the extent of any such credit, and to otherwise
assist in the administration of the premium credit program, including
the promulgation of department of financial services rules and
regulations for the implementation of the program.
In addition to the superintendent of financial services, the committee
shall consist of:
(a) a representative from the department of labor;
(b) a representative from the department of economic development;
(c) a representative from the state insurance fund;
(d) an individual with an actuarial background and experience in the
field of workers' compensation;
(e) an individual with a background in safety engineering appointed by
the governor upon recommendation by the New York State American
Federation of Labor-Congress of Industrial Organizations;
(f) an individual with a background in safety engineering appointed by
the governor upon recommendation of the Business Council of the State of
New York;
(g) an individual with a background in safety engineering appointed by
the governor upon recommendation of the insurance industry; and
(h) an additional member of the committee with respect to any given
application for a premium credit shall be the current insurer of the
applicant.
All departments, divisions, boards, offices, and public corporations
of the state, and the workers' compensation rating board, shall provide
such data, information or other assistance as the committee may require
to fulfill its purposes.
The committee shall serve at the pleasure of the governor and shall
receive no compensation except for reasonable and necessary expenses
incurred in the course of performing the official duties of the
committee. Such expenses shall be paid from application fees paid in
accordance with rules and regulations promulgated by the superintendent
of financial services.
3. Premium credit calculations with respect to investments for safety
shall be based only upon tangible personal property and other tangible
property, including buildings and structural components of buildings
which make for a safer work environment, which are depreciable pursuant
to section one hundred sixty-seven of the internal revenue code, have a
useful life of four years or more, are acquired by purchase as defined
in section one hundred seventy-nine(d) of the internal revenue code,
have a situs in this state and are:
(a) principally used by the premium payer in the production of goods
by manufacturing, processing, assembling, refining, mining, extracting,
farming, agriculture, horticulture, floriculture, viticulture or
commercial fishing,
(b) industrial waste treatment facilities or air pollution control
facilities, used in the premium payer's trade or business, or
(c) research and development property.
For purposes of this section, the term "goods" shall not include
electricity.
4. For purposes of this section, the following definitions shall
apply:
(a) Manufacturing shall mean the process of working raw materials into
wares suitable for use or which gives new shapes, new quality or new
combinations to matter which already has gone through some artificial
process by the use of machinery, tools, appliances and other similar
equipment. Property used in the sale of goods at retail or the
production of goods shall include machinery, equipment or other tangible
property which is principally used in the repair and service of other
machinery, equipment or other tangible property used principally in the
production of goods and shall include all facilities used in the
production operation, including storage of material to be used in
production and of the products that are produced.
(b) Research and development property shall mean property which is
used for purposes of research and development in the experimental or
laboratory sense. Such purposes shall not be deemed to include the
ordinary testing or inspection of materials or products for quality
control, efficiency surveys, management studies, consumer surveys,
advertising, promotions, or research in connection with literary,
historical or similar projects.
(c) Industrial waste treatment facilities shall mean property
constituting facilities for the treatment, neutralization or
stabilization of industrial waste and other wastes (as the terms
"industrial waste" and "other wastes" are defined in section 17-0105 of
the environmental conservation law) from a point immediately preceding
the point of such treatment, neutralization or stabilization to the
point of disposal, including the necessary pumping and transmitting
facilities, but excluding such facilities installed for the primary
purpose of salvaging materials which are usable in the manufacturing
process or are marketable.
(d) Air pollution control facilities shall mean property constituting
facilities which remove, reduce, or render less noxious air contaminants
emitted from an air contamination source (as the terms "air contaminant"
and "air contamination source" are defined in section 19-0107 of the
environmental conservation law) from a point immediately preceding the
point of such removal, reduction or rendering to the point of discharge
of air meeting emission standards as established by the department of
environmental conservation, but excluding such facilities installed for
the primary purpose of salvaging materials which are usable in the
manufacturing process or are marketable and excluding those facilities
which rely for the efficacy on dilution, dispersion or assimilation of
air contaminants in the ambient air after emission. Such term shall
further include flue gas desulfurization equipment and attendant sludge
disposal facilities, fluidized bed boilers, precombustion coal cleaning
facilities or other facilities that conform with this section and which
comply with the provisions of the state acid deposition control act set
forth in title nine of article nineteen of the environmental
conservation law.
5. A premium credit under this section shall be allowed with respect
to industrial waste treatment facilities and air pollution control
facilities only on condition that such facilities have been certified by
the state commissioner of environmental conservation or his or her
designated representative, pursuant to subdivision one of section
17-0707 or subdivision one of section 19-0309 of the environmental
conservation law, as complying with applicable provisions of the
environmental conservation law, the public health law and the state
sanitary code and codes, rules, regulations, permits or orders issued
pursuant thereto.
6. Tangible personal property and other tangible property, including
buildings and structural components of buildings, which an employer
leases to any other person or corporation are not to be considered as
investments for safety in premium credit calculations. For purposes of
the preceding sentence, any contract or agreement to lease or rent or
for a license to use such property shall be considered a lease.
Provided, however, in determining whether an employer shall be allowed a
credit under this section with respect to such property, any election
made with respect to such property pursuant to the provisions of
paragraph eight of subsection (f) of section one hundred sixty-eight of
the internal revenue code, as such paragraph was in effect for
agreements entered into prior to January first, nineteen hundred
eighty-four, shall be disregarded.
7. Subject to the limitations provided in subdivision one of this
section, the amount of a premium credit shall be a percent of the
investment credit base. The investment credit base is the cost or other
basis for federal income tax purposes of tangible personal property and
other tangible property, including buildings and structural components
of buildings, as described in subdivision three of this section. The
amount of the percent to be applied against such investment credit base
shall be based upon the useful life of such tangible personal property
and other tangible property, and the extent to which the investment
would result in a safer work environment and upon such other actuarially
appropriate evidence offered by the applicant that the investment would
result in a safer work environment. The superintendent of financial
services shall promulgate rules and regulations determining how the
percentage to be applied against the investment credit base shall be
calculated.
8. The superintendent of financial services shall promulgate rules and
regulations for the purpose of determining how to calculate the period
during which an applicant may receive a premium credit.
9. In the event an employer which applied for and received a premium
credit pursuant to this section moves or relocates its business outside
of this state during the period in which it receives the benefits of
such credit, such employer shall be responsible for repaying to the
insurer the entire amount of such credit already received.
10. An employer who is obligated to but does not comply with the
requirements of section one hundred thirty-four of this article is not
eligible to apply for premium credits under this section.
11. An employer shall be eligible for a credit against premiums for
workers' compensation insurance coverage in an amount up to five percent
of such premiums for such other safety measures that may be implemented
by an employer and which meet the standard for such premium credit as
established by the superintendent. Such safety measures shall not
include those measures provided for in this section of this article, or
apply to such industries provided for in this section.
Workers' compensation fraud inspector general. 1. Definitions.
For the purposes of this section, the following definitions shall apply:
(a) "Inspector general" means the workers' compensation fraud
inspector general created by this section.
(b) "Assistant inspector general" means a workers' compensation fraud
assistant inspector general created by this section.
2. Appointment, compensation and removal. Notwithstanding any other
provision of law, the governor shall appoint the inspector general. The
board shall employ and the governor shall fix the compensation of the
inspector general. The inspector general shall, and may do so without
civil service examination, appoint and the board shall employ, such
assistant inspectors general and other persons as he or she deems
necessary, determine their duties and fix their compensation. Such
assistant inspectors general shall assist the inspector general in
carrying out the inspector general's duties and responsibilities as set
forth in this section and shall have such powers as granted the
inspector general under this section. Employees appointed pursuant to
this section without civil service examination shall be placed in the
noncompetitive class of the competitive service pursuant to subdivision
two-a of section forty-two of the civil service law and shall serve at
the pleasure of the governor. The payment of salaries and compensation
of employees appointed pursuant to this section shall be made pursuant
to section one hundred forty-eight of this chapter.
3. Powers, duties and responsibilities. The inspector general shall
investigate violations of the laws and regulations pertaining to the
operation of the workers' compensation system. The inspector general
shall have the following powers, duties and functions:
(a) to conduct and supervise investigations, within or without this
state, of possible fraud and other violations of laws, rules and
regulations pertaining to the workers' compensation system;
(b) to subpoena witnesses, administer oaths or affirmations, take
testimony and compel the production of such books, papers, records and
documents as the inspector general may deem to be relevant to an
investigation undertaken pursuant to this section;
(c) to report to the attorney general, the insurance frauds bureau, or
other appropriate law enforcement agency, violations found through
investigations undertaken pursuant to this section and to provide such
materials and assistance as may be necessary or appropriate for the
successful investigation and prosecution of violations of this chapter;
(d) to submit a written report, on an annual basis, to the governor
and to the chair of the board, listing all activities undertaken to the
extent such activities can be disclosed pursuant to subdivision five of
this section; and
(e) to recommend legislative and regulatory changes to the governor
and to the chair of the board.
4. Cooperation of agency officials and employees. (a) In addition to
the authority otherwise provided by this section, the inspector general,
in carrying out the provisions of this section, is authorized:
(i) to have full and unrestricted access to all records, reports,
audits, reviews, documents, papers, recommendations or other material
maintained by the board or any other state agency relating to the
workers' compensation system, with respect to which the inspector
general has responsibilities under this section; and
(ii) to request such information, assistance and cooperation from any
federal, state or local government, department, board, bureau,
commission, or other agency or unit thereof as may be necessary for
carrying out the duties and responsibilities enjoined upon the inspector
general by this section. State and local agencies or units thereof are
hereby authorized and directed to provide such information, assistance
and cooperation.
(b) No person shall prevent, seek to prevent, interfere with, obstruct
or otherwise hinder any investigation being conducted pursuant to this
section.
5. Disclosure of information. The inspector general shall not publicly
disclose information which is:
(a) a part of an ongoing investigation or prosecution; or
(b) specifically prohibited from disclosure by any other provision of
law.
The disclosure of information in order to coordinate investigations
with the insurance frauds bureau of the department of financial
services, including the unit for workers' compensation insurance frauds
investigations within such insurance frauds bureau, and any frauds
investigations unit of the state insurance fund, to provide the report
required by paragraph (c) of subdivision three of this section or to
apprise the chair of ongoing investigations shall not be considered
public disclosure for purposes of this section.
Independent medical examinations. 1. (a) A copy of each report
of independent medical examination shall be submitted by the
practitioner on the same day and in the same manner to the board, the
insurance carrier, the claimant's attending physician or other attending
practitioner, the claimant's representative and the claimant.
(b) If a practitioner who has performed or will be performing an
independent medical examination of a claimant receives a request for
information regarding the claimant, including faxed or electronically
transmitted requests, the practitioner shall submit a copy of the
request for information to the board within ten days of receipt of the
request. Nothing in this subdivision shall be construed to abrogate the
attorney-client privilege.
(c) Copies of all responses to such requests for information as are
described in paragraph (b) of this subdivision, including all materials
which are provided in response to such a request, shall be submitted by
the responding practitioner to the board within ten days of submission
of the response to the requestor. Nothing in this subdivision shall be
construed to abrogate the attorney-client privilege.
2. In any open case where an award has been directed by the board for
temporary or permanent disability at an established rate of compensation
and there is a direction by the board for continuation of payments, or
any closed case where an award for compensation has been made for
permanent total or permanent partial disability, a report of an
independent medical examination shall not be the basis for suspending or
reducing payments unless and until the rules and regulations of the
board regarding suspending or reducing payments have been met and there
is a determination by the board finding that such suspension or
reduction is justified.
3. (a) Only a New York state licensed and board certified physician,
surgeon, podiatrist or any other person authorized to examine or
evaluate injury or illness by the board shall perform such independent
medical examination. Where a claimant resides out of state a
practitioner qualified to examine or evaluate injury or illness by the
board shall perform such independent medical examination.
(b) Any practitioner performing the independent medical examinations
shall be paid according to the fee schedule established pursuant to
section thirteen of this chapter.
4. All independent medical examinations shall be performed in medical
facilities suitable for such exam, with due regard and respect for the
privacy and dignity of the injured worker as well as the access and
safety of the claimant. Such facilities must be provided in a convenient
and accessible location within a reasonable distance from the claimant's
residence.
5. All independent medical examinations shall be performed by a
practitioner competent to evaluate or examine the injury or disease from
which the injured worker suffers. Such examination shall be performed by
a practitioner who is licensed and board certified in the state of New
York or any other person authorized to examine or evaluate injury or
illness by the board.
6. No practitioner examining or evaluating a claimant under this
chapter nor any supervising authority or proprietor nor insurance
carrier or employer may cause, direct or encourage a report to be
submitted as evidence in workers' compensation claim adjudication which
differs substantially from the professional opinion of the examining
practitioner. Such an action shall be considered within the jurisdiction
of the workers' compensation fraud inspector general and may be referred
as a fraudulent practice.
7. The claimant shall receive notice by mail of the scheduled
independent medical examination at least seven business days prior to
such examination. Such notice shall advise the claimant if the
practitioner intends to record or video tape the examination, and shall
advise the claimant of their right to video tape or otherwise record the
examination. Claimants shall be advised of their right to be accompanied
during the exam by an individual or individuals of their choosing.
8. Independent medical examinations shall be performed during regular
business hours except with the consent and for the convenience of the
claimant. Claimants subject to such examination shall be notified at the
time of the exam in writing of the available travel reimbursement under
law.
9. A practitioner is not eligible to perform an independent medical
examination of a claimant if the practitioner has treated or examined
the claimant for the condition for which the independent medical
examination is being requested or if another member of a preferred
provider organization or managed care provider to which the practitioner
belongs has treated or examined the claimant for the condition for which
the independent medical examination is being requested.
10. The ability of a claimant to appear for an exam or hearing shall
not be dispositive in the determination of disability, extent of
disability or eligibility for benefits.
11. At the time of the independent medical examination the claimant
shall receive a notice from the entity performing the independent
medical examination, on a form which shall be approved and promulgated
by the chair, stating the rights and obligations of the claimant and the
practitioner with respect to such exam, and such notice shall include
but not be limited to a statement that the claimant's receipt of
benefits could be denied, terminated, or reduced as a result of a
determination which may be based upon the medical evaluation made after
such independent medical examination, and the claimant's rights to
challenge or appeal such a determination.
12. The chair shall conduct a thorough study of the utilization of
independent medical examinations under this chapter, to occur within
calendar year two thousand eighteen, and shall convene and present a
preliminary report based on the study to an advisory committee set to
commence on or about January first, two thousand nineteen. The advisory
committee is to consist of representatives of organized labor, business,
carriers, self-insured employers, medical providers, and other
stakeholders and experts as the chair may deem fit to include. The
advisory committee shall meet quarterly, or more frequently if directed
by the chair. By December thirty-first, two thousand nineteen, the
committee shall present detailed recommendations to the governor,
speaker of the assembly, and majority leader of the senate, regarding
administrative improvements, and regulatory and statutory proposals,
that will ensure fairness, and highest medical quality, while improving
methods of combatting fraud. The committee shall review and analyze
leading studies, both in New York state and nationally. The compensation
insurance rating board shall provide data, and cooperate with the chair
and committee in identifying potential abuse and fraud. The report shall
consider, among other items, the feasibility of new methods of assigning
independent medical examinations, such as through rotating providers or
panels, statewide networks, or other arrangements.
ARTICLE 8 Administration
Workers' compensation board. The workers' compensation board in
the department of labor is hereby continued. Such board shall consist of
thirteen members, at least four of whom shall be attorneys and
counsellors-at-law duly admitted to practice in this state. The members
of the board shall be appointed by the governor, by and with the advice
and consent of the senate. The members of the board in office, together
with the additional members and the members appointed to fill vacancies,
if any, at the time this section takes effect, shall continue,
notwithstanding the appointment of any of the members for a term
expiring on a different date, to hold office for terms to be assigned by
the governor by and with the advice and consent of the senate; two such
terms to expire on December thirty-first, nineteen hundred fifty; two to
expire on December thirty-first, nineteen hundred fifty-one; two to
expire on December thirty-first, nineteen hundred fifty-two; two to
expire on December thirty-first, nineteen hundred fifty-three; two to
expire on December thirty-first, nineteen hundred fifty-four; two to
expire on December thirty-first, nineteen hundred fifty-five; and one to
expire on December thirty-first, nineteen hundred fifty-six. The members
next appointed, except to fill a vacancy created otherwise than by
expiration of term, shall be appointed for terms of seven years. The
governor shall designate one of the members of the board as chairman and
another as vice-chairman.
* § 141. General powers and duties of the chair. The chair shall be
the administrative head of the workers' compensation board and shall
exercise the powers and perform the duties in relation to the
administration of this chapter heretofore vested in the commissioner of
labor by chapter fifty of the laws of nineteen hundred twenty-one, and
acts amendatory thereof, and by this chapter excepting article six
thereof, and except in so far as such powers and duties are vested by
this chapter in the workers' compensation board. The chair shall preside
at all meetings of the board and shall appoint all committees and panels
of the board; shall designate the times and places for the hearing of
claims under this chapter and shall perform all administrative functions
of the board as in this chapter set forth. The chair, in the name of the
board, shall enforce all the provisions of this chapter, and may make
administrative regulations and orders providing for the receipt,
indexing and examining of all notices, claims and reports, for the
giving of notice of hearings and of decisions, for certifying of
records, for the fixing of the times and places for the hearing of
claims, and for providing for the conduct of hearings and establishing
of calendar practice to the extent not inconsistent with the rules of
the board. The chair shall issue and may revoke certificates of
authorization of physicians, chiropractors and podiatrists as provided
in sections thirteen-a, thirteen-k and thirteen-1 of this chapter, and
licenses for medical bureaus and x-ray and other laboratories under the
provisions of section thirteen-c of this chapter, issue stop work orders
as provided in section one hundred forty-one-a of this article, and
shall have and exercise all powers not otherwise provided for herein in
relation to the administration of this chapter heretofore expressly
conferred upon the commissioner of labor by any of the provisions of
this chapter, or of the labor law. The chair, on behalf of the workers'
compensation board, shall enter into the agreement provided for in
section one hundred seventy-one-h of the tax law, and shall take such
other actions as may be necessary to carry out the agreement provided
for in such section for matching beneficiary records of workers'
compensation with information provided by employers to the state
directory of new hires for the purposes of verifying eligibility for
such benefits and for administering workers' compensation.
* NB Effective until January 1, 2028
* § 141. General powers and duties of the chair. The chair shall be
the administrative head of the workers' compensation board and shall
exercise the powers and perform the duties in relation to the
administration of this chapter heretofore vested in the commissioner of
labor by chapter fifty of the laws of nineteen hundred twenty-one, and
acts amendatory thereof, and by this chapter excepting article six
thereof, and except in so far as such powers and duties are vested by
this chapter in the workers' compensation board. The chair shall preside
at all meetings of the board and shall appoint all committees and panels
of the board; shall designate the times and places for the hearing of
claims under this chapter and shall perform all administrative functions
of the board as in this chapter set forth. The chair, in the name of the
board, shall enforce all the provisions of this chapter, and may make
administrative regulations and orders providing for the receipt,
indexing and examining of all notices, claims and reports, for the
giving of notice of hearings and of decisions, for certifying of
records, for the fixing of the times and places for the hearing of
claims, and for providing for the conduct of hearings and establishing
of calendar practice to the extent not inconsistent with the rules of
the board. The chair shall issue and may revoke certificates of
authorization of physicians, chiropractors, podiatrists, and
psychologists to perform independent medical examinations in accordance
with paragraph (b) of subdivision four of section thirteen-a and section
one hundred thirty-seven of this chapter, and licenses for medical
bureaus and x-ray and other laboratories under the provisions of section
thirteen-c of this chapter, shall publish and maintain an exclusion
list, in accordance with section thirteen-d of this chapter, for
providers as defined in section thirteen-b of this chapter currently
disqualified from providing medical care or from performing independent
medical examinations in accordance with paragraph (b) of subdivision
four of section thirteen-a and section one hundred thirty-seven of this
chapter, shall develop and require trainings for providers as defined in
section thirteen-b of this chapter, which shall include, but not be
limited to, the role of medical evidence in the board's determination of
claims, the contents of medical reports, the process for seeking
authorization for special services, diagnostic test networks, and
permanency guidelines, issue stop work orders as provided in section one
hundred forty-one-a of this article, and shall have and exercise all
powers not otherwise provided for herein in relation to the
administration of this chapter heretofore expressly conferred upon the
commissioner of labor by any of the provisions of this chapter, or of
the labor law. The chair, on behalf of the workers' compensation board,
shall enter into the agreement provided for in section one hundred
seventy-one-h of the tax law, and shall take such other actions as may
be necessary to carry out the agreement provided for in such section for
matching beneficiary records of workers' compensation with information
provided by employers to the state directory of new hires for the
purposes of verifying eligibility for such benefits and for
administering workers' compensation. The chair shall promulgate
regulations to (1) require that the employer or its carrier or special
fund shall pay the costs associated with any deposition of a claimant's
provider, and (2) allow workers' compensation law judges to deny
cross-examination of a provider where appropriate. The chair may
promulgate further regulations designed to prevent the consequences of a
treating provider's failure to comply with statutory or regulatory
provisions, including failure to appear for a deposition, from unduly
harming the injured worker's receipt of compensation or medical
treatment.
* NB Effective January 1, 2028
Civil enforcement. 1. To investigate violations of sections
fifty-two, one hundred thirty-one and two hundred thirteen of this
chapter, the chair or his or her designees shall have the power to:
(a) Enter and inspect any place of business at any reasonable time for
the purpose of investigating employer compliance.
(b) Examine and copy business records.
(c) Administer oaths and affirmations.
(d) Issue and serve subpoenas for attendance of witnesses or
production of business records, books, papers, correspondence,
memoranda, and other records. Such subpoenas may be served without the
state on any defendant over whom a New York court would have personal
jurisdiction under the civil practice law and rules as to the subject
matter under investigation, provided the information or testimony sought
bears a reasonable relationship to the subject matter under
investigation.
2. The chair shall specify by rule the business records that employers
must maintain and produce to comply with this section.
3. If a person has refused to obey a subpoena, the chair may commence
an action in supreme court of any county where venue is proper for an
order requiring compliance with the subpoena. Costs, including
reasonable attorney's fees, incurred by the chair to obtain and enforce
an order granting, in whole or in part, a petition to enforce a subpoena
shall be taxed against the subpoenaed party.
4. (a) Whenever the chair determines that an employer who is required
to secure compensation in accordance with this chapter has failed to
secure such compensation, or where an employer has failed to pay
penalties assessed against it pursuant to this chapter, or failed to pay
a judgment under section twenty-six of this chapter within ninety days
after notice to the employer and has not moved to modify or vacate such
judgment, such failure shall be deemed an immediate serious danger to
public health, safety, or welfare sufficient to justify service by the
chair of a stop-work order on the employer, requiring the cessation of
all business operations effective immediately, except where the
employer's failure concerns only domestic or child care workers in his
or her own household. The chair may issue such order, which shall take
effect as to a particular employer worksite when served at that
worksite, or as to all employer worksites in the state for which the
employer is not in compliance when served on the employer. A stop-work
order may be served with regard to an employer's worksite by posting a
copy of the stop-work order in a conspicuous location at the worksite.
The order shall remain in effect until the chair directs that the
stop-work order be removed, upon a determination that the employer has
come into compliance with the coverage requirements of this chapter and
has paid any penalty assessed under this chapter. If the employer shall
within thirty days after notice of the stop-work order make an
application in affidavit form for a redetermination review of such order
the chair shall make a decision in writing on the issues raised in such
application. The chair may direct a conditional release from a stop-work
order upon a finding that the employer has complied with coverage
requirements of this chapter and has agreed to remit periodic payments
of the penalty pursuant to a payment agreement schedule with the chair.
If an agreement or order of conditional release is issued, failure by
the employer to meet any term or condition of such payment agreement
shall result in the immediate reinstatement of the stop-work order and
the entire unpaid balance of the penalty shall become immediately due.
The chair may require an employer who is found to have failed to comply
with the coverage requirements of this chapter to file with the board,
as a condition of release from a stop-work order, periodic reports for a
probationary period that shall not exceed two years, and that
demonstrate the employer's continued compliance with this chapter. The
board shall by rule specify the reports required and the time for filing
under this subdivision.
(b) A stop-work order issued against an employer under this section
shall be in effect against any non-compliant substantially-owned
affiliated entity.
5. The chair may file a complaint in the supreme court of any county
where venue is proper: (a) to enjoin any employer from violating a
stop-work order; or (b) to enjoin any other practice prohibited by
section fifty-two or one hundred thirty-one of this chapter. In any
action brought by the chair pursuant to this section in which it
prevails, the court may award costs, including the reasonable costs of
investigation and reasonable attorneys' fees.
6. Any judgment obtained by the chair and any penalty due under this
section shall, until collected, constitute a lien upon the entire
interest of the employer, legal or equitable, in any property, real or
personal, tangible or intangible; however, such lien is subordinate to
claims for unpaid wages and any prior recorded liens, and a lien created
by this section is not valid against any person who, subsequent to such
lien and in good faith and for value, purchases real or personal
property from such employer or becomes the mortgagee on real or personal
property of such employer, or against a subsequent attaching creditor,
unless, with respect to real estate of the employer, a notice of the
lien is recorded in the public records of the county where the real
estate is located, and with respect to personal property of the
employer, the notice is recorded with the secretary of state.
7. In any court proceedings under this section, the chair shall be
represented by the attorney general.
Suspension and debarment. Any person subject to a final
assessment of civil fines or penalties or a stop-work order, or that has
been convicted of a misdemeanor for a violation of sections twenty-six,
fifty-two or one hundred thirty-one of this chapter, and any
substantially-owned affiliated entity of such person, shall be
ineligible to submit a bid on or be awarded any public work contract or
subcontract with the state, any municipal corporation or public body for
a period of one year from the final determination or conviction. Any
person convicted of a felony under this article, or a misdemeanor under
sections one hundred twenty-five and one hundred twenty-five-a of this
chapter shall be ineligible to submit a bid on or be awarded any public
work contract or subcontract with the state, any municipal corporation
or public body for a period of five years from such conviction.
Coordination of forms. The board, the commissioner of labor,
the commissioner of taxation and finance, the commissioner of motor
vehicles, and the superintendent of financial services shall consult on
an ongoing basis to coordinate the amendment of forms used to gather
data helpful in identifying fraud, so as to promote effective use and
sharing of such information for identifying fraud in the area of
workers' compensation. Through such consultations and other means, these
agencies shall study the implementation of appropriate practicable
technology to verify the authenticity of forms, including certificates
of coverage.
General powers and duties of the workmen's compensation board.
1. The workmen's compensation board shall have power to hear and
determine all claims for compensation or benefits or relating to special
funds created under the provisions of this chapter, in the manner
provided by this chapter; to require medical service for injured
employees as provided by this chapter; to approve and fix attorney's
fees and claims for medical service to the extent provided in this
chapter; to excuse failure to give notice either of injury or death of
an employee, to approve agreements, to modify or rescind awards, to make
conclusions of fact and rulings of law, to certify questions to the
appellate division of the supreme court, to enter orders in appealed
cases, to determine the time for the payment of compensation, to order
the reimbursement of employers for amounts advanced, to assess
penalties, to commute awards, to compromise actions for the collection
of awards, to require or permit employers to deposit the present value
of awards in the aggregate trust fund of the state fund, to determine by
rule the assignment of a minor's right to sue a third party, to require
guardianship for minor dependents, to hear and determine claims under
the occupational disease act, to order physical examinations, to take
testimony by depositions; and to have and exercise all other powers and
duties, exclusive of purely administrative functions, originally
conferred or imposed upon the workmen's compensation commission by this
chapter, or by any other statute, and by chapter six hundred and
seventy-four of the laws of nineteen hundred fifteen conferred and
imposed upon the industrial commission, and by chapter fifty of the laws
of nineteen hundred twenty-one conferred and imposed upon the industrial
board. For the purpose of exercising such powers and performing such
duties, the workmen's compensation board shall be deemed to be a
continuation of the industrial board provided for by the provisions of
the labor law; and all proceedings under this chapter pending before
such board are hereby transferred to the workmen's compensation board
without prejudice to the rights of any party to such proceeding.
The workmen's compensation board, subject to the provisions of this
chapter and of the provisions of the labor law as to the distribution of
functions, shall succeed to all the rights, powers, duties and
obligations of the department of labor, the industrial commissioner and
the industrial board, in so far as they relate to workmen's
compensation, as heretofore constituted, except such as are vested in
the chairman of the board by this article and except with respect to
article six of this chapter.
Whenever the term "industrial board" or the "chairman" or
"vice-chairman" thereof appears in this chapter or in the provisions of
the labor law after the time this article takes effect, it shall be
construed to mean the workmen's compensation board or the chairman
thereof, as created by the provisions of this chapter, as may be
required by the context unless the contrary shall be indicated.
2. Any review, hearing, rehearing, inquiry or investigation required
or authorized to be conducted or made by the workers' compensation board
may be conducted or made by any panel of the board consisting of not
less than three members thereof, and the order, decision or
determination of a majority of the members of a panel shall be deemed
the order, decision or determination of the board from the date of
filing thereof with the secretary of the board, unless the board on its
own motion, or on application by a party in interest for a full board
review made in accordance with section twenty-three of this chapter,
shall modify or rescind such order, decision or determination. Four
panels shall be constituted at all times, and the chair shall assign the
members to the panels upon which they shall serve. At least one member
on each panel shall be an attorney and counsellor-at-law, but the
absence of an attorney on any panel shall not invalidate the order,
decision or determination of a majority of the members of the panel if
at least two affirmative votes are cast in favor of such action. The
panels shall be constituted so that the members of the board shall
alternate in their periods of service together thereon. Whenever a
number of proceedings remains pending before the board for a period in
excess of thirty days, members of the board shall hold hearings and
otherwise act in the discharge of their duties evenings and at other
convenient times on all days of the week except Sundays, in addition to
the times when they would perform such duties in the ordinary conduct of
the business of the board, in order to expedite the disposal thereof.
The chair may and shall, when directed by the governor, prescribe the
hours and the times for such additional performance of duty by the
members of the board and the period or periods for the continuance
thereof.
Notwithstanding any provision in this section to the contrary, a
member of the board may be designated by the chair to act individually
in the hearing and determination of any claim under this chapter, or
conduct any investigation, hearing or inquiry hereunder, or review and
rescind any order, decision or determination upon any claim and restore
such claim for further trial hearing and evidence or consideration
except that such member may not conduct any appellate rehearing of any
case or otherwise review any order, decision or determination upon any
claim and reverse, modify or affirm such order, decision or
determination which by the provisions of this section shall be reheard
or reviewed by the board or a panel thereof.
3. The members of the workmen's compensation board, a referee or any
other officer or employee of the board if duly authorized by the
chairman, may administer oaths and take affidavits in matters relating
to the provisions of this chapter.
The members of the workmen's compensation board, the referees and any
other officer of the board designated by the chairman, shall have power:
a. To issue subpoenas for and compel the attendance of witnesses and
the production of books, contracts, papers, documents and other
evidence;
b. To hear testimony and take or cause to be taken depositions of
witnesses residing within or without this state in the manner prescribed
by law for like depositions in civil actions in the supreme court.
Subpoenas and commissions to take testimony shall be issued under the
seal of the board.
4. Notwithstanding the provisions of any other law, neither the
industrial commissioner nor any board or other agency of the department
of labor shall in any way direct, review, modify or reverse any decision
or finding of the board nor shall the industrial commissioner or any
board or other agency of the department of labor supervise or control
the board or its members in the exercise of any powers or in the
performance of any duties under this chapter.
5. The workers' compensation board shall keep an accurate record of
all hearings held. Where the decision of a referee is affirmed by the
board upon review, the board shall assess against each insurance carrier
or employer seeking such review the sum of one hundred fifty dollars and
may assess against any other party the sum of twenty dollars. The amount
so secured from these assessments shall be paid into the state treasury.
6. The workers' compensation board shall not release any information
acquired pursuant to section five hundred thirty-seven of the labor law
and section one hundred seventy-one-a of the tax law unless the release
of such information is required to further fraud control activities
undertaken by the workers' compensation board pursuant to this chapter,
in which case release of such information shall be subject to the
restrictions contained in section five hundred thirty-seven of the labor
law and section one hundred seventy-one-a of the tax law.
7. Where there has been a motor vehicle accident which caused personal
injury and there is a dispute as to whether the injury occurred in the
course of employment, the workers' compensation board shall, after
notice to the no-fault carrier and the workers' compensation carrier,
hold an expedited hearing on the issue of whether the accident occurred
during the course of employment.
Maintenance of records. 1. The board is authorized and
empowered to use electronic means in accordance with section three
hundred five of the state technology law to record and maintain public
records, papers, documents or matters required by law to be recorded.
Such records shall be capable of being copied, photographed, or
microphotographed by a process which accurately reproduces the original
thereof in all details.
2. The copies thereof shall be deemed to be an original record for all
purposes, including introduction in evidence in all courts or
administrative agencies. A transcript, exemplification or certified copy
thereof shall, for all purposes recited herein, be deemed to be a
transcript, exemplification, or certified copy of the original.
3. The board shall have the power to authorize the destruction, sale
to a historical, educational, or scientific organization or to otherwise
dispose of its records, subject only to receiving the consent of the
commissioner of education as may be required by article fifty-seven of
the arts and cultural affairs law.
Seal. The board may adopt a seal and require that it be used
for the authentication of orders and proceedings and for such other
purposes as the board may prescribe.
Oaths of office. The members of the board and the secretary
shall, before entering upon the duties of their office, take and
subscribe the constitutional oath of office. Such oaths shall be filed
in the office of the department of state.
Offices of the board. There shall be an office of the board in
the city of New York and at such other place or places in the state as
may be required properly and conveniently to transact the business of
the board. The board may meet and exercise any or all of its powers at
any place in the state.
Vacancies and removals. If a vacancy shall occur in the office
of any member of the board otherwise than by expiration of term, it
shall be filled by the governor, by and with the advice and consent of
the senate, for the unexpired term. The governor may remove the chairman
or any member of the board for cause after giving him a copy of the
charges and an opportunity of being heard in person or by counsel on not
less than ten days' notice. If the chairman or a member of the board be
removed the governor shall file with the department of state a statement
of the cause of such removal.
Salaries and expenses. 1. The chairman and members of the board
shall devote their entire time to the duties of their office and shall
not practice in their respective professions or callings. The reasonable
and necessary expenses of the board and the reasonable and necessary
traveling and other expenses of the chairman and members of the board,
the secretary and other officers and employees of the board, while
actually engaged in the performance of their duties, outside of the city
of Albany, or if any such officer or employee be in charge of or
actually employed at an office of the board outside of the city of
Albany, the reasonable and necessary traveling and other expenses
outside of the place in which such office is located, shall be paid from
the state treasury upon the audit and warrant of the comptroller, upon
vouchers approved by the chairman or vice-chairman or secretary of the
board.
2. For the purpose of extending the benefits of workmen's compensation
and improving administration and expediting the adjudication of claims,
the chairman is hereby authorized, within the limits of the
appropriation available therefor, to initiate studies and surveys, to
observe operations in other states, to conduct research, and to make
investigations in the entire field of workmen's compensation, within and
without the state of New York. The chairman is also hereby authorized to
accept a gift, grant, or contribution of funds to be used in his
discretion to carry out the purposes of this subdivision and shall in
the annual report of the board set forth the progress of the same.
Employees. Permanent employees of the department of labor
assigned to duties wholly in relation to the enforcement and
administration of this chapter, in the competitive class of the
classified civil service in office when this section takes effect shall
continue in office, except that upon certification by the chairman to
the director of the budget filed within sixty days from the time this
chapter takes effect that any such employee is not required for the
exercise of the functions, powers, duties and obligations transferred
and assigned to the board pursuant to this chapter, such employee shall
not be continued; provided, however, that whenever there are more than
three officers or employees in the same class and grade of position the
provisions of section thirty-one of the civil service law shall apply,
and any such employee or employees not continued in office shall be
placed on the preferred eligible list.
The chairman of the board may appoint officers and employees,
including such investigators, statisticians, examiners, and other
assistants, as may be necessary for the exercise of the powers and the
performance of the duties of the chairman or the board.
The chairman may transfer officers or employees from their positions
to other positions under the board; may abolish or consolidate such
positions; and may suspend or remove from office any officer or employee
of the board; subject, however, to the provisions of the civil service
law and rules.
Referees and secretary. (a) The chair shall appoint as many
persons as may be necessary to be referees to perform the duties
prescribed by this section. All positions of referee now in existence
shall remain in the exempt class of the classified civil service, except
as otherwise provided herein. The term of referees appointed to
positions in the exempt class shall be seven years from the date of
appointment; provided, however, that referees may be removed by the
chair for cause after notice of charges and an opportunity to be heard.
A newly created position of referee, or one that has been vacated, shall
be classified in the competitive class of the classified service, and
the term of office prescribed herein shall not apply to such
appointments; provided, however, that those who are serving in referee
positions on the date that this act becomes effective whose term has
already expired or whose term expires on or after such effective date
may, in the discretion of the appointing authority, be retained in that
position until the expiration of the eligible list established as the
result of the next competitive examination appropriate for such title,
held after January first, nineteen hundred ninety-one or may, before
such time, be appointed from such eligible list.
A referee shall devote his or her entire time to the duties of that
office and shall not hold any other public office or public employment
for which compensation is received, other than necessary travel or other
expenses incurred in the performance of the duties of such office or
employment, and may engage in any employment that does not conflict with
the proper performance of the duties of his or her office and is not
inconsistent with the public officers law. Referees shall receive an
annual salary to be fixed by the chair within the appropriation made
therefor.
(b) It shall be the duty of a referee, under rules adopted by the
board, to hear and determine claims for compensation, and to conduct
such hearings and investigations and to make such orders, decisions and
determinations as may be required by any general or special rule or
order of the board under the provisions of this chapter. The decision of
a referee on such a claim shall be deemed the decision of the board from
the date of the filing thereof in the office of the secretary of the
board unless the board, on its own motion or on application duly made to
it, modify or rescind such decision. Whenever any deaf person is a party
to a hearing conducted before a referee, or a witness therein, the
referee shall in all instances appoint a qualified interpreter who is
certified by a recognized national or New York state credentialing
authority to interpret the proceedings to and the testimony of such deaf
person. The board shall determine a reasonable fee for all such
interpreting services, the cost of which shall constitute an
administrative expense.
(c) Notwithstanding any other provisions of this section to the
contrary, the chair may establish a list of board employees qualified by
training or experience to serve as acting referees. When the chair or
his or her duly designated representative shall determine that a
temporary emergency exists, he, she or said representative may assign an
employee from such list to serve as an acting referee during such
temporary emergency. Such board employee qualified by training or
experience shall serve without additional compensation and shall have
all the powers and duties of a duly appointed referee.
(d) There shall be a secretary of the board who shall be appointed and
may be removed by the board. The board shall fix his salary within the
limits of the appropriations therefor. The secretary shall perform such
duties in connection with meetings of the board and such other duties as
may be assigned to him by the board. He shall also perform such of the
administrative duties and have such of the administrative powers of the
chairman of the board as may be delegated or assigned to him by the
chairman.
Secretary as agent for service of process on non-resident
non-insured employers; method and effect of service. Any non-insured
employer, not a resident of this state or any resident non-insured
employer who becomes a non-resident of this state after the occurrence
of any injury to an employee, who shall employ or who shall have
employed any person who shall be entitled to benefits under this
chapter, shall be deemed, by the accepting of the privilege of engaging
in work in this state, to make, constitute and appoint the secretary of
the workmen's compensation board as his or its agent for the acceptance
of process in any proceeding by any such employee or dependent or
representative of such employee, under and by virtue of this chapter;
and the acceptance of such privilege shall be a signification of such
employer that any such process issued against him or it, which is so
served, shall be of the same legal force and validity as if served upon
him or it personally within the state.
Service of such process shall be made by filing a copy of the claim
for workmen's compensation with the secretary of the board, and such
service shall be sufficient service upon such non-resident employer,
provided that notice of such filing together with copy of the claim for
workmen's compensation are forthwith sent by registered mail by the
secretary of the board to the employer to the address stated in such
claim for workmen's compensation or the last known address of the
employer.
A non-resident employer against whom claim for compensation has been
filed with the chairman under and by virtue of this chapter shall be
deemed to have consented that the appointment of the secretary of the
board as his or its agent for the acceptance of process pursuant to the
provisions of this section shall be irrevocable and binding upon his
executor or administrator. Where the non-resident employer has died
prior to the filing of a claim for workmen's compensation with the
chairman, service of process shall be made on the executor or
administrator of such non-resident employer in the same manner and on
the same notice as is provided in the case of a non-resident employer.
Where the non-resident employer has died subsequent to the service of
process made in accordance with the provisions of this section, the
proceedings under and by virtue of this chapter shall continue against
his executor or administrator upon such notice as the board shall deem
proper. The board may order such continuance as may be necessary to
afford the employer a reasonable opportunity to defend the claim.
This section shall be construed to extend the right of service of
process upon non-residents and shall not be construed as limiting any
provisions for the service of process now or hereafter existing.
Assessments for annual expenses. 1. The annual expenses
necessary for the board to administer the provisions of this chapter,
the volunteer ambulance workers' benefit law, the volunteer
firefighters' benefit law, the disability benefits law, and the
workmen's compensation act for civil defense volunteers shall be borne
by affected employers securing compensation for their employees pursuant
to section fifty of this chapter. The board shall collect such annual
expenses from affected employers through assessments as provided by the
provisions of this section, including for purposes of this subdivision:
(a) the aggregate assessment amount described in subparagraph four of
paragraph (h) of subdivision eight of section fifteen of this chapter
for the special disability fund in accordance with each financing
agreement described in such subparagraph, (b) the aggregate assessment
amount described in section fifty-c of this chapter for the self-insurer
offset fund in accordance with each financing agreement described in
such section, (c) the assessment amount described in subdivision three
of section twenty-five-a of this chapter for the fund for reopened
cases, (d) the assessment amount described in section two hundred
fourteen of this chapter for the special fund for disability benefits
and (e) a sum sufficient as determined by the chair but no greater than
0.4% of the total estimated statewide premium to cover the establishment
and maintenance of dedicated workers' compensation fraud units within
New York state district attorneys' offices; provided, that the foregoing
and any other provision of this chapter to the contrary notwithstanding,
assessment receipts shall be applied first to fully fund the amount
described in subparagraph four of paragraph (h) of subdivision eight of
section fifteen of this chapter and then to fully fund the amount
described in section fifty-c of this chapter in accordance with each
then applicable financing agreement pursuant to such provisions prior to
application to any other purpose other than to pay any actual costs of
collecting such assessment that are not otherwise funded. For purposes
of this section, affected employer means all employers required to
obtain workers' compensation coverage pursuant to this chapter.
2. On the first day of November, two thousand thirteen, and annually
thereafter, the chair shall establish an assessment rate for all
affected employers in the state of New York in an amount expected to be
sufficient to produce assessment receipts at least sufficient to fund
all estimated annual expenses pursuant to subdivision one of this
section except those expenses for which an assessment is authorized for
self-insurance pursuant to subdivision five of section fifty of this
chapter. Such rate shall be assessed effective the first of January of
the succeeding year and shall be based upon a single methodology
determined by the chair. The chair may also establish an additional
assessment rate, not to exceed thirty percent of annual premiums, for
those affected employers who are in default in the payment of their
compensation pursuant to subparagraph (b) of paragraph seven of
subdivision three-a of section 50 of this chapter. Such additional
assessment shall be collected and remitted to the chair consistent with
subdivisions four and five of this section. The chair shall make
available for public inspection an itemized statement of the estimated
annual expenses in the office of the board for thirty days immediately
after the rate is established.
3. The chair and department of audit and control annually as soon as
practicable after the first of April of each year shall ascertain the
actual total amount of expenses, including in addition to the direct
costs of personal service, the cost of maintenance and operation, the
cost of retirement contributions made and workers' compensation premiums
paid by the state for or on account of personnel, rentals for space
occupied in state owned or state leased buildings, such additional sum
as may be certified to the chair and the department of audit and control
as a reasonable compensation for services rendered by the department of
law and expenses incurred by such department, for transfer into the
training and educational program on occupational safety and health fund
created pursuant to chapter eight hundred eighty-six of the laws of
nineteen hundred eighty-five and section ninety-seven-c of the state
finance law, for the New York state occupational health clinics network,
for the department of labor occupational safety and health program and
for transfer into the uninsured employers' fund pursuant to subdivision
two of section twenty-six-a of this chapter, and all other direct or
indirect costs, incurred by the board in connection with the
administration of this chapter, except those expenses for which an
assessment is authorized for self-insurance pursuant to subdivision five
of section fifty of this chapter. Assessments pursuant to subparagraph
four of paragraph (h) of subdivision eight of section fifteen of this
chapter for the special disability fund, pursuant to section fifty-c of
this chapter for the self insurer offset fund, pursuant to subdivision
three of section twenty-five-a of this chapter for the fund for reopened
cases, and pursuant to section two hundred fourteen of this chapter for
the special fund for disability benefits shall be included in the total
amount of expenses for the purposes of this subdivision. Any overpayment
of annual assessments resulting from the requirements of this
subdivision shall be applied as a credit against the future assessment
rate provided the fund balance shall not be reduced below five percent
of the total amount assessed.
4. For those affected employers obtaining coverage:
(a) by insuring with the state fund pursuant to subdivision one of
section fifty of this chapter; or (b) through a policy pursuant to
subdivision two of section fifty of this chapter; or (c) through a
county self-insurance plan under article five of this chapter; or (d)
through a group private or public self-insurer pursuant to subdivision
three-a of section fifty of this chapter, such assessment amounts shall
be collected and remitted to the chair by the carrier or the state
insurance fund, or county plan, or group private or public self-insurer,
on behalf of the employer(s) until such time as the board establishes a
direct employer payment process. Affected private or public employers
providing compensation through self insurance pursuant to subdivision
three of section fifty of this chapter shall pay assessment amounts
directly to the chair.
5. Insurance carriers as defined in section two of this chapter
including the state insurance fund and self-insurers, shall collect from
affected employers and periodically remit to the board such assessments
and shall be responsible for ensuring their employers/policyholders are
current on their assessments. (a) Failure to ensure policyholders or
employers are current on their assessments will result in the insurance
carrier; or self-insurer; being liable for such assessments.
(b) In the event the employer; insurance carrier; or self-insurer;
knew or should have known that the employer misreported any data related
to the assessment process, they may be subject to any applicable
penalties or sanctions provided by this chapter.
6. (a) Effective the first day of January, two thousand fourteen, all
assessment cycles in progress will be replaced with the assessment rate
determined herein. However, such new assessment rate shall not relieve
any carrier or self-insurer for outstanding amounts due as of the first
day of January two thousand fourteen.
(b) All assessment amounts collected by insurance carriers, except the
state fund, and not yet remitted to the board prior to the first day of
January, two thousand fourteen must be remitted to the chair no later
than the first day of February, two thousand fourteen.
(c) Effective immediately, notwithstanding any law to the contrary,
pursuant to the provisions of this chapter, the assessment reserves
remitted to the chair pursuant to this paragraph shall, at the request
of the director of the budget, be distributed as follows:
(i) As soon as practicable on or after April first, two thousand
sixteen, the chair of the workers' compensation board shall transfer one
hundred forty million dollars to the state insurance fund, for partial
payment and partial satisfaction of the state's obligations to the state
insurance fund under workers' compensation law section eighty-eight-c
for two thousand sixteen.
(ii) Effective immediately, the chair of the workers' compensation
board shall authorize the board to expend up to sixty million dollars to
implement infrastructure and system upgrades consistent with
recommendations of the workers' compensation board redesign and
reengineering project.
(iii) Effective immediately, the chair of the workers' compensation
board shall authorize the board to expend up to forty million dollars
for: (A) transfer into the training and educational program on
occupational safety and health fund created pursuant to chapter eight
hundred eighty-six of the laws of nineteen hundred eighty-five and
section ninety-seven-c of the state finance law; (B) the department of
labor occupational safety and health program; (C) transfer into the
uninsured employers' fund pursuant to subdivision two of section
twenty-six-a of this chapter in connection with payment of claims made
pursuant to article eight-A of this chapter; (D) a reduction in
liabilities of the special disability fund pursuant to subdivision eight
of section fifteen of this chapter and/or the fund for reopened cases
pursuant to section twenty-five-a of this chapter; and/or (E) transfer
to or payment of up to ten million dollars of such amount on behalf of
the superintendent of financial services for costs associated with the
implementation of the paid family leave act of article nine of this
chapter.
Any and all funds remaining after accounting for the transfers and
expenditures set forth above may, at the discretion of the director of
the budget, either remain with the workers' compensation board or be
transferred to the general fund for the purpose of reducing budget gaps.
Annually, the workers' compensation board will provide to the director
of the budget, the chair of the senate finance committee, and the chair
of the assembly ways and means committee, an accounting of such funds
and all associated income received. Such accounting will continue until
March thirty-first, two thousand twenty.
7. Assessments for the expenses of the board including assessments
pursuant to paragraph (h) of subdivision eight of section fifteen of
this chapter for the special disability fund and pursuant to subdivision
three of section twenty-five-a of this chapter for the fund for reopened
cases shall not constitute elements of loss.
7-a. Notwithstanding any law to the contrary, when there is a default
on the payment of premium, including any assessments payable under
subdivision seven of this section, any action by the carrier, including
the state insurance fund, to collect any unpaid premium shall include an
action seeking recovery of such assessments on behalf of the board. The
carrier shall remit the amount of any such unpaid assessments collected
either pursuant to a judgment or by settlement to the board.
8. The foregoing and every other prevision of law to the contrary
notwithstanding, all moneys received on account of the assessment
authorized by this section shall be deposited upon receipt into the
administrative clearing account held by the commissioner of taxation and
finance and applied, as pledged assessments for purposes of sections
sixteen hundred eighty-l and sixteen hundred eighty-q of the public
authorities law and prior to any other application: first, in accordance
with any other provision of any special disability fund financing
agreement entered into prior to March thirty-first, two thousand
thirteen, to the extent required to fully fund the then current payment
and reserve requirements under such financing agreement; and second, in
accordance with each special disability fund financing agreement and
each self-insured bond financing agreement, to the extent required to
fully fund the then current payment and reserve requirements under each
such financing agreement entered into after March thirty-first, two
thousand thirteen with respect to bonds issued by the dormitory
authority pursuant to either section sixteen hundred eighty-l or section
sixteen hundred eighty-q of the public authorities law, on a pari passu
basis without preference or priority among all such other bonds. Such
monies shall not be commingled with any other monies in the
commissioner's custody prior to the completion of such application and
shall not be deemed to be part of the state treasury or of any funds
under management of the state. This section shall not be deemed to
authorize any infringement upon the rights of holders of such bonds
issued or to be issued under such sections of the public authorities
law. The provisions of this section may be included by the dormitory
authority in any contract with the holders of any such bonds. The
operation of this section and the application of the receipts of the
assessment authorized by this section shall be subject to the provisions
of each financing agreement authorized pursuant to subparagraph four of
paragraph (h) of subdivision eight of section fifteen or to section
fifty-c of this chapter and this section shall not be deemed to
authorize any infringement upon the rights of holders of bonds issued or
to be issued pursuant to either such provision.
9. The provisions of this section shall not apply with respect to
policies containing coverage pursuant to paragraph one of subsection (j)
of section three thousand four hundred twenty of the insurance law
relating to every policy providing comprehensive personal liability
insurance on a one, two, three or four family owner-occupied dwelling.
10. If the assessments collected pursuant to this section are
insufficient to meet the obligations financed by the assessments, the
chair, for a period of three years, may borrow any shortfall from the
state insurance fund with any borrowing to be added to the assessments
under this section and repaid the following year to the state insurance
fund with interest at the state insurance fund's then current rate of
return.
11. Effective immediately, notwithstanding any law to the contrary,
pursuant to the provisions of this chapter, the assessment reserves held
by the state insurance fund for the payment of future assessments are no
longer required and all funds and investments held by the state
insurance fund related to the assessment reserves shall be transferred
to the chair of the workers' compensation board as soon as practicable.
The commissioner of taxation and finance shall be custodian of such
funds, which shall not be commingled with other funds of the workers'
compensation board, and may invest such funds in the same manner as
surplus funds held by the state insurance fund pursuant to subdivision
two of section eighty-seven of this chapter. Disbursements of such funds
shall be made by such commissioner upon written warrant of the chair of
the workers' compensation board or the chair's designee.
At the request of the director of the budget, such moneys transferred
to the chair of the workers' compensation board shall be distributed as
follows:
(a) As soon as practicable after April first, two thousand thirteen,
the chair of the workers' compensation board shall transfer two hundred
fifty million dollars to the general fund for debt management or fiscal
uncertainties.
(b) As soon as practicable after April first, two thousand fourteen,
the chair of the workers' compensation board shall transfer one billion
dollars to the general fund for the purpose of reducing budget gaps.
(c) As soon as practicable after April first, two thousand fifteen,
the chair of the workers' compensation board shall transfer two hundred
fifty million dollars to the general fund for the purpose of reducing
budget gaps.
(d) As soon as practicable after April first, two thousand sixteen,
the chair of the workers' compensation board shall transfer two hundred
fifty million dollars to the general fund for the purpose of reducing
budget gaps.
(e) Any and all funds remaining after accounting for the transfers set
forth above may, at the discretion of the director of the budget, either
remain with the workers' compensation board or be transferred to the
general fund for the purpose of reducing budget gaps or to the state
insurance fund. The budget director, acting in consultation with the
chair of the workers' compensation board, shall determine whether any
money returned to the state insurance fund is a loan or a transfer and
the terms and conditions therein. Any funds transferred or loaned to the
state insurance fund upon the budget director's request may be invested
in a manner consistent with investment guidelines pursuant to
subdivision two of section eighty-seven of the workers' compensation
law.
Annually, the state insurance fund and the workers' compensation board
will provide to the director of the budget, the chair of the senate
finance committee, and the chair of the assembly ways and means
committee, an accounting of such funds and all associated income
received. Such accounting will continue until March thirty-first, two
thousand seventeen.
12. The chair shall promulgate regulations to carry out the provisions
of this section.
13. To effectuate an efficient assessment process and the proper
management of the workers' compensation system all data in possession of
the compensation insurance rating board shall be made available to the
board and the department of financial services upon request.
14. The chair may conduct periodic audits of any employer,
self-insurer, insurance carrier and the state insurance fund concerning
any information or payment required under this section, including any
information relevant to the payment or calculation of any assessments.
The employer, self-insurer, insurance carrier and the state insurance
fund shall provide all necessary documents and information in relation
to an audit in a manner prescribed by the chair. Upon the determination
of the chair that an employer, self-insurer, insurance carrier or the
state insurance fund has underpaid an assessment as a result of its
inaccurate reporting, the employer, self-insurer, insurance carrier or
the state insurance fund upon notice from the chair, shall pay the full
amount of the underpaid assessment, along with interest at the rate of
nine per cent per annum on the unpaid assessment due not later than
thirty days after such notice. An insurance carrier or employer that
knowingly makes a material misrepresentation of information required for
the purpose of effectuating this section shall be guilty of a class E
felony.
15. Beginning in two thousand twenty-eight, the board shall include in
its annual report made pursuant to section one hundred fifty-three of
this article a summary of the funds distributed for the purpose of
establishment and maintenance of dedicated workers' compensation fraud
units within New York state district attorneys' offices pursuant to
paragraph (e) of subdivision one of this section, which shall include
for each district attorneys' office:
(a) the amount of funds distributed;
(b) a description of each resulting conviction, including:
(i) the full name of the defendant;
(ii) the date of conviction;
(iii) a description of the offense;
(iv) the amount of money alleged to have been defrauded; and
(v) a description of any offenses other than workers' compensation
fraud for which the defendant was simultaneously convicted;
(c) the total number of and pertinent details contained in any
charging instruments, which shall include only the amount of money
alleged to have been defrauded and the workers' compensation fraud
charges alleged, and shall not include any personally identifying
information of the charged individual or any other information that is
not publicly available; and
(d) the number of new positions created and persons hired for
positions within dedicated workers' compensation fraud units.
Administrative regulations. The chairman of the board may make,
amend and repeal regulations for the administration of the board and its
employees. Such regulations shall not be deemed rules within the meaning
of this chapter or of the labor law unless the context of such
regulations otherwise requires.
The chairman may by order filed in the office of the secretary
delegate any of his administrative powers to or direct any of his duties
other than as a member of the board to be performed by any other officer
of the board or the head of any bureau or section of the board.
* § 153. Annual report. The board shall on or before the first day of
February in each year make an annual report in writing to the governor,
stating in detail the work it has done in hearing and deciding cases and
otherwise.
* NB Effective until January 1, 2028
* § 153. Annual report. The board shall on or before the first day of
February in each year make an annual report in writing to the governor,
the temporary president of the senate, the speaker of the assembly, and
the chairs of the senate and assembly standing committees on labor,
stating in detail the work it has done in hearing and deciding cases and
otherwise. Such reports shall include the number of providers who
rendered medical care or treatment under this chapter in the prior
calendar year, the completion rate for provider training required by the
board pursuant to section one hundred forty-one of this article, and an
analysis of the degree to which new providers are successfully complying
with this chapter and implementing regulations.
* NB Effective January 1, 2028
Construction of article. This article shall be construed as a
continuation of those parts of article two of chapter thirty-six of the
laws of nineteen hundred nine, entitled "An act relating to labor,
constituting chapter thirty-one of the consolidated laws," as amended by
chapter fifty of the laws of nineteen hundred twenty-one, and acts
amendatory thereof, in so far as it relates to the administration of the
workmen's compensation law, and not as a new enactment.
Saving clause. This article shall not affect pending actions,
civil or criminal, brought by or against the department of labor, the
industrial commissioner or the industrial board, but the same may be
prosecuted or defended in the same manner and with the same effect as if
this article had not been passed, by the industrial commissioner if the
subject matter of the action or proceeding falls within his jurisdiction
and otherwise by the workmen's compensation board or the chairman
thereof. Every rule, regulation, order, permit or license of the
industrial commissioner or industrial board in force when this article
takes effect shall continue in force until such rule, regulation or
order be amended or repealed or such permit or license revoked or
terminated pursuant to the provisions of this chapter or of the labor
law, or otherwise. Any investigation, examination or proceeding
undertaken, commenced or instituted by the industrial board or by any
referee prior to the taking effect of this article may be conducted and
continued to a final determination or conclusion in the same manner, and
under the same terms and conditions and with the same effect as though
this article had not been passed, by the workmen's compensation board or
the chairman thereof, if the subject matter of the investigation,
examination or proceeding falls within its or his jurisdiction by the
terms of this act, and otherwise by the industrial commissioner.
Separability. If any clause, sentence, paragraph, or part of
this article or the application thereof to any person or circumstances,
shall, for any reason, be adjudged by a court of competent jurisdiction
to be invalid, such judgments shall not affect, impair, or invalidate
the remainder of this article, and the application thereof to other
person or circumstances, but shall be confined in its operation to the
clause, sentence, paragraph, or part thereof directly involved in the
controversy in which such judgment shall have been rendered and to the
person or circumstances involved. It is hereby declared to be the
legislative intent that this article would have been adopted had such
invalid provisions not been included.
Application of article to volunteer firefighters' benefit law
or the volunteer ambulance workers' benefit law. The following terms
used in this article, unless inconsistent with the volunteer
firefighters' benefit law or the volunteer ambulance workers' benefit
law, are hereby enlarged as follows:
1. "Employer" includes any political subdivision liable for benefits
pursuant to the volunteer firefighters' benefit law or the volunteer
ambulance workers' benefit law.
2. "Employee" includes a volunteer firefighter or volunteer ambulance
worker who has been or might be injured in line of duty or who dies or
might die from such an injury. When a political subdivision or a
district or area thereof is responsible for the payment of benefits
pursuant to the volunteer firefighters' benefit law or the volunteer
ambulance workers' benefit law, it shall be deemed the "employer" of
such "employee."
3. "Workers' compensation" and "compensation" include the benefits in
relation to volunteer firefighters or volunteer ambulance workers
pursuant to the volunteer firefighters' benefit law or the volunteer
ambulance workers' benefit law.
4. "This chapter" includes the volunteer firefighters' benefit law and
the volunteer ambulance workers' benefit law, except when such a meaning
is inconsistent with this article.
5. "Subdivisions one and two of section fifty", as used in section one
hundred fifty-one of this chapter, includes subdivision nine of section
thirty of the volunteer firefighters' benefit law and subdivision nine
of section thirty of the volunteer ambulance workers' benefit law.
ARTICLE 8-A World Trade Center Rescue, Recovery and Clean-up Operations
Definitions. Whenever used in this article:
1. "Participant in World Trade Center rescue, recovery, or cleanup
operations" means any (a) employee who within the course of employment,
or (b) volunteer upon presentation to the board of evidence satisfactory
to the board that he or she:
(i) participated in the rescue, recovery, or cleanup operations at the
World Trade Center site between September eleventh, two thousand one and
September twelfth, two thousand two; or
(ii) worked at the Fresh Kills Land Fill in New York city between
September eleventh, two thousand one and September twelfth, two thousand
two, or
(iii) worked at the New York city morgue or the temporary morgue on
pier locations on the west side of Manhattan between September eleventh,
two thousand one and September twelfth, two thousand two, or
(iv) worked on the barges between the west side of Manhattan and the
Fresh Kills Land Fill in New York city between September eleventh, two
thousand one and September twelfth, two thousand two.
2. "World Trade Center site" means anywhere below a line starting from
the Hudson River and Canal Street; east on Canal Street to Pike Street;
south on Pike Street to the East River; and extending to the lower tip
of Manhattan.
3. "Qualifying condition" means any of the following diseases or
conditions resulting from a hazardous exposure during participation in
World Trade Center rescue, recovery or clean-up operations:
(a) Diseases of the upper respiratory tract and mucosae, including
conditions such as conjunctivitis, rhinitis, sinusitis, pharyngitis,
laryngitis, vocal cord disease, upper airway hyper-reactivity and
tracheo-bronchitis, or a combination of such conditions;
(b) Diseases of the lower respiratory tract, including but not limited
to bronchitis, asthma, reactive airway dysfunction syndrome, and
different types of pneumonitis, such as hypersensitivity, granulomatous,
or eosinophilic;
(c) Diseases of the gastroesophageal tract, including esophagitis and
reflux disease, either acute or chronic, caused by exposure or
aggravated by exposure;
(d) Diseases of the psychological axis, including post-traumatic
stress disorder, anxiety, depression, or any combination of such
conditions; or
(e) New onset diseases resulting from exposure as such diseases occur
in the future including cancer, chronic obstructive pulmonary disease,
asbestos-related disease, heavy metal poisoning, musculoskeletal disease
and chronic psychological disease.
4. "Disablement" shall have the same meaning as defined in section
thirty-seven of this chapter and determined by the board in the same
manner as provided in section forty-two of this chapter.
Registration of participation in World Trade Center rescue,
recovery and clean-up operations. In order for the claim of a
participant in World Trade Center rescue, recovery and clean-up
operations to come within the application of this article, such
participant must file a written and sworn statement with the board on a
form promulgated by the chair indicating the dates and locations of such
participation and the name of such participant's employer during the
period of participation. Such statement must be filed not later than
September eleventh, two thousand thirty. The board shall transmit a copy
of such statement to the employer or carrier named therein. The filing
of such a statement shall not be considered the filing of a claim for
benefits under this chapter.
Notice; participants in the World Trade Center rescue, recovery
and clean-up operations. The notice requirements for injury or death
resulting from a qualifying condition for a participant in World Trade
Center rescue, recovery and clean-up operations shall be the same as set
forth in section eighteen of this chapter, except that the notice shall
be given to the employer, or in the case of a volunteer, to the board,
within two years after the disablement of the participant or after the
participant knew or should have known that the qualifying condition was
causally related to his or her participation in World Trade Center
rescue, recovery and clean-up operations, whichever is the later date.
Disablement of a participant in World Trade Center rescue,
recovery and clean-up operations treated as an accident. The date of
disablement of a participant in World Trade Center rescue, recovery and
clean-up operations resulting from a qualifying condition that is
causally related to such participant shall be treated as the happening
of an accident within the meaning of this chapter and the procedure and
practice provided in this chapter shall apply to all proceedings under
this article, except where otherwise specifically provided herein. The
board shall determine the date of disablement that is most beneficial to
the claimant.
Reopening of disallowed claims. The board, upon receiving a
statement duly filed as required under section one hundred sixty-two of
this article, from a participant in World Trade Center rescue, recovery
and clean-up operations for a qualifying condition that was disallowed
as barred by section eighteen or section twenty-eight of this chapter or
by section one hundred sixty-two of this article for failure to register
timely shall reopen and redetermine such claim in accordance with the
provisions of this article, provided that no such previously disallowed
claim for a qualifying condition shall be determined to have a date of
disablement that would bar the claim under section eighteen or section
twenty-eight of this chapter.
Liability of employer and insurance carrier. The employer in
whose employment an employee participated in World Trade Center rescue,
recovery and clean-up operations shall be liable for any claim for a
qualifying condition that is causally related to such participation
provided that such participation arose out of and in the course of such
employment. For the purpose of determining which carrier has insurance
coverage of such claim, the date of accident shall be considered the
last day of such participation.
Claims of volunteers. For persons who participated in World
Trade Center rescue, recovery and clean-up operations as volunteers, the
uninsured employers' fund shall be deemed to be the employer for the
purposes of administering and paying claims pursuant to this article.
Benefits under this chapter shall be payable to such volunteers in the
first instance and to the extent that funds are available out of funds
appropriated to the United States Department of Labor under Public Law
109-148 to reimburse the uninsured employer's fund for the payment of
such benefits and thereafter from the uninsured employers' fund. The
uninsured employers' fund may pay for volunteers' medical treatment
notwithstanding such medical expenses having been denied by the World
Trade Center Health Organization.
Additional period for filing certain claims. 1. A claim by a
participant in the World Trade Center rescue, recovery or cleanup
operations whose disablement occurred between September eleventh, two
thousand three, and September eleventh, two thousand eight, shall not be
disallowed as barred by section eighteen or section twenty-eight of this
chapter if such claim is filed on or before September eleven, two
thousand ten. Any such claim by a participant in the World Trade Center
rescue, recovery or cleanup operations whose disablement occurred
between September eleventh, two thousand three, and September eleventh,
two thousand eight, and was disallowed by section eighteen or
twenty-eight of this chapter shall be reconsidered by the board.
2. A claim by a participant in the World Trade Center rescue, recovery
or cleanup operations whose disablement occurred between September
twelfth, two thousand eight, and September eleventh, two thousand
twelve, shall not be disallowed as barred by section eighteen or section
twenty-eight of this chapter if such claim is filed on or before
September eleventh, two thousand fourteen. Any such claim by a
participant in the World Trade Center rescue, recovery or cleanup
operations whose disablement occurred between September eleventh, two
thousand eight, and September eleventh, two thousand twelve, and was
disallowed by section eighteen or twenty-eight of this chapter shall be
reconsidered by the board.
3. A claim by a participant in the World Trade Center rescue, recovery
or cleanup operations whose disablement occurred between September
eleventh, two thousand twelve, and September eleventh, two thousand
fifteen, shall not be disallowed as barred by section eighteen or
section twenty-eight of this chapter if such claim is filed on or before
September eleventh, two thousand eighteen. Any such claim by a
participant in the World Trade Center rescue, recovery or cleanup
operations whose disablement occurred between September eleventh, two
thousand twelve, and September eleventh, two thousand fifteen, and was
disallowed by section eighteen or twenty-eight of this chapter shall be
reconsidered by the board.
4. A claim by a participant in the World Trade Center rescue, recovery
or cleanup operations whose disablement occurred between September
eleventh, two thousand fifteen, and September eleventh, two thousand
seventeen, shall not be disallowed as barred by section eighteen or
section twenty-eight of this chapter if such claim is filed on or before
September eleventh, two thousand twenty-two. Any such claim by a
participant in the World Trade Center rescue, recovery or cleanup
operations whose disablement occurred between September eleventh, two
thousand fifteen, and September eleventh, two thousand seventeen, and
was disallowed by section eighteen or twenty-eight of this chapter shall
be reconsidered by the board.
5. A claim by a participant in the World Trade Center rescue, recovery
or cleanup operations whose disablement occurred between September
eleventh, two thousand seventeen, and September eleventh, two thousand
twenty-one, shall not be disallowed as barred by section eighteen or
section twenty-eight of this chapter if such claim is filed on or before
September eleventh, two thousand twenty-six. Any such claim by a
participant in the World Trade Center rescue, recovery or cleanup
operations whose disablement occurred between September eleventh, two
thousand seventeen, and September eleventh, two thousand twenty-one, and
was disallowed by section eighteen or twenty-eight of this chapter shall
be reconsidered by the board.
6. A claim by a participant in the World Trade Center rescue, recovery
or cleanup operations whose disablement occurred between September
eleventh, two thousand twenty-one, and September eleventh, two thousand
twenty-five, shall not be disallowed as barred by section eighteen or
section twenty-eight of this chapter if such claim is filed on or before
September eleventh, two thousand thirty. Any such claim by a participant
in the World Trade Center rescue, recovery or cleanup operations whose
disablement occurred between September eleventh, two thousand
twenty-one, and September eleventh, two thousand twenty-five, and was
disallowed by section eighteen or twenty-eight of this chapter shall be
reconsidered by the board.
Presumptive evidence. 1. The board shall accept the
certifications of the Centers for Disease Control and Prevention World
Trade Center Health Program as presumptive evidence of causation of
certified illnesses pursuant to 42 USC 300mm for claims filed for
conditions of impairment of health or death pursuant to a qualifying
condition.
2. Notwithstanding section eighteen or twenty-eight of this chapter,
any claimant who filed a claim or claims that were denied prior to the
effective date of this section may refile such claim or claims within
two years of the effective date of this section.
ARTICLE 9 Disability Benefits
Short title. This article shall be known and may be cited as
the "disability benefits law and the paid family leave benefits law."
Definitions. As used in this article:
1. "Board" means the workers' compensation board created under this
chapter.
2. "Chairman" means the chairman of the workers' compensation board of
the state of New York.
3. "State fund" means the state insurance fund created under article
six of this chapter.
4. "Employer," except when otherwise expressly stated, means a person,
partnership, association, corporation, legal representative of a
deceased employer, or the receiver or trustee of a person, partnership,
association or corporation, who has persons in employment as defined in
subdivision six of this section, but does not include the state, a
municipal corporation, local governmental agency, other political
subdivisions or public authority.
5. "Employee" means a person engaged in the service of an employer in
any employment defined in subdivision six of this section, except a
minor child of the employer, except a duly ordained, commissioned, or
licensed minister, priest or rabbi, a sexton, a christian science
reader, or member of a religious order, or an executive officer of a
corporation who at all times during the period involved owns all of the
issued and outstanding stock of the corporation and holds all of the
offices pursuant to paragraph (e) of section seven hundred fifteen of
the business corporation law or two executive officers of a corporation
who at all times during the period involved between them own all of the
issued and outstanding stock of such corporation and hold all such
offices provided, however, that each officer must own at least one share
of stock, except as provided in section two hundred twelve of this
article, or an executive officer of an incorporated religious,
charitable or educational institution, or persons engaged in a
professional or teaching capacity in or for a religious, charitable or
educational institution, or volunteers in or for a religious, charitable
or educational institution, or persons participating in and receiving
rehabilitative services in a sheltered workshop operated by a religious,
charitable or educational institution under a certificate issued by the
United States department of labor, or recipients of charitable aid from
a religious or charitable institution who perform work in or for the
institution which is incidental to or in return for the aid conferred,
and not under an express contract of hire. The terms "religious,
charitable or educational institution" mean a corporation,
unincorporated association, community chest, fund or foundation
organized and operated exclusively for religious, charitable or
educational purposes, no part of the net earnings of which inure to the
benefit of any private shareholder or individual.
"Employee" shall also mean, for purposes of this chapter, a
professional musician or a person otherwise engaged in the performing
arts who performs services as such for a television or radio station or
network, a film production, a theatre, hotel, restaurant, night club or
similar establishment unless, by written contract, such musician or
person is stipulated to be an employee of another employer covered by
this chapter. "Engaged in the performing arts" shall mean performing
service in connection with the production of or performance in any
artistic endeavor which requires artistic or technical skill or
expertise.
"Employee" shall also mean, for purposes of this chapter, a
professional model, who:
(a) performs modeling services for; or
(b) consents in writing to the transfer of his or her exclusive legal
right to the use of his or her name, portrait, picture or image, for
advertising purposes or for the purposes of trade, directly to
a retail store, a manufacturer, an advertising agency, a photographer,
a publishing company or any other such person or entity, which dictates
such professional model's assignments, hours of work or performance
locations and which compensates such professional model in return for a
waiver of such professional model's privacy rights enumerated above,
unless such services are performed pursuant to a written contract
wherein it is stated that such professional model is the employee of
another employer covered by this chapter. For the purposes of this
paragraph, the term "professional model" means a person who, in the
course of his or her trade, occupation or profession, performs modeling
services. For purposes of this paragraph, the term "modeling services"
means the appearance by a professional model in photographic sessions or
the engagement of such model in live, filmed or taped modeling
performances for remuneration.
6. "Employment." A. "Employment" means employment in any trade,
business or occupation carried on by an employer, except that the
following shall not be deemed employment under this article: services
performed for the state, a municipal corporation, local governmental
agency, other political subdivision or public authority; employment
subject to the federal railroad unemployment insurance act; service
performed on or as an officer or member of the crew of a vessel on the
navigable water of the United States or outside the United States;
casual employment and the first forty-five days of extra employment of
employees not regularly in employment as otherwise defined herein;
service as golf caddies; and service during all or any part of the
school year or regular vacation periods as a part-time worker of any
person actually in regular attendance during the day time as a student
in an elementary or secondary school. The term "employment" shall
include domestic or personal work in a private home. The term
"employment" shall not include the services of a licensed real estate
broker or sales associate if it be proven that (a) substantially all of
the remuneration (whether or not paid in cash) for the services
performed by such broker or sales associate is directly related to sales
or other output (including the performance of services) rather than to
the number of hours worked; (b) the services performed by the broker or
sales associate are performed pursuant to a written contract executed
between such broker or sales associate and the person for whom the
services are performed within the past twelve to fifteen months; and (c)
the written contract provided for in subparagraph (b) of this paragraph
was not executed under duress and contains the following provisions:
(i) that the broker or sales associate is engaged as an independent
contractor associated with the person for whom services are performed
pursuant to article twelve-A of the real property law and shall be
treated as such for all purposes, including but not limited to federal
and state taxation, withholding, unemployment insurance and workers'
compensation;
(ii) that the broker or sales associate (1) shall be paid a commission
on his or her gross sales, if any, without deduction for taxes, which
commission shall be directly related to sales or other output; (2) shall
not receive any remuneration related to the number of hours worked; and
(3) shall not be treated as an employee with respect to such services
for federal and state tax purposes;
(iii) that the broker or sales associate shall be permitted to work
any hours he or she chooses;
(iv) that the broker or sales associate shall be permitted to work out
of his or her own home or the office of the person for whom services are
performed;
(v) that the broker or sales associate shall be free to engage in
outside employment;
(vi) that the person for whom the services are performed may provide
office facilities and supplies for the use of the broker or sales
associate, but the broker or sales associate shall otherwise bear his or
her own expenses, including but not limited to automobile, travel, and
entertainment expenses;
(vii) that the person for whom the services are performed and the
broker or sales associate shall comply with the requirements of article
twelve-A of the real property law and the regulations pertaining
thereto, but such compliance shall not affect the broker or sales
associate's status as an independent contractor nor should it be
construed as an indication that the broker or sales associate is an
employee of the person for whom the services are performed for any
purpose whatsoever;
(viii) that the contract and the association created thereby may be
terminated by either party thereto at any time upon notice given to the
other.
"Employment" shall not include, for the purposes of this chapter, the
services of a licensed insurance agent or broker if it be proven that
(a) substantially all of the remuneration (whether or not paid in cash)
for the services performed by such agent or broker is directly related
to sales or other output (including the performance of services) rather
than to the number of hours worked; (b) such agent is not a life
insurance agent receiving a training allowance subsidy described in
paragraph three of subsection (e) of section four thousand two hundred
twenty-eight of the insurance law; (c) the services performed by the
agent or broker are performed pursuant to a written contract executed
between such agent or broker and the person for whom the services are
performed; and (d) the written contract provided for in clause (c) of
this paragraph was not executed under duress and contains the following
provisions:
(i) that the agent or broker is engaged as an independent contractor
associated with the person for whom services are performed pursuant to
article twenty-one of the insurance law and shall be treated as such for
all purposes, including but not limited to federal and state taxation,
withholding (other than federal insurance contributions act (FICA) taxes
required for full time life insurance agents pursuant to section
3121(d)(3) of the federal internal revenue code), unemployment insurance
and workers' compensation;
(ii) that the agent or broker (1) shall be paid a commission on his or
her gross sales, if any, without deduction for taxes (other than federal
insurance contributions act (FICA) taxes required for full time life
insurance agents pursuant to section 3121(d)(3) of the federal internal
revenue code), which commission shall be directly related to sales or
other output; (2) shall not receive any remuneration related to the
number of hours worked; and (3) shall not be treated as an employee with
respect to such services for federal and state tax purposes (other than
federal insurance contributions act (FICA) taxes required for full time
life insurance agents pursuant to section 3121(d)(3) of the federal
internal revenue code);
(iii) that the agent or broker shall be permitted to work any hours he
or she chooses;
(iv) that the agent or broker shall be permitted to work out of his or
her own office or home or the office of the person for whom services are
performed;
(v) that the person for whom the services are performed may provide
office facilities, clerical support, and supplies for the use of the
agent or broker, but the agent or broker shall otherwise bear his or her
own expenses, including but not limited to automobile, travel, and
entertainment expenses;
(vi) that the person for whom the services are performed and the agent
or broker shall comply with the requirements of article twenty-one of
the insurance law and the regulations pertaining thereto, but such
compliance shall not affect the agent's or broker's status as an
independent contractor nor should it be construed as an indication that
the agent or broker is an employee of the person for whom the services
are performed for any purpose whatsoever;
(vii) that the contract and the association created thereby may be
terminated by either party thereto at any time with notice given to the
other.
B. The term "employment" includes an employee's entire service
performed within or both within and without this state if the service is
localized in this state. Service is deemed localized within the state if
it is performed entirely within the state or is performed both within
and without the state but that performed without the state is incidental
to the employee's service within the state or is temporary or transitory
in nature or consists of isolated transactions.
C. The term "employment" includes an employee's entire service
performed both within and without this state provided it is not
localized in any state but some of the service is performed in this
state, and
(1) the employee's base of operations is in this state; or
(2) if there is no base of operations in any state in which some part
of the service is performed, the place from which such service is
directed or controlled is in this state; or
(3) if the base of operations or place from which such service is
directed or controlled is not in any state in which some part of the
service is performed, the employee's residence is in this state.
D. "Employment" shall not include the services of a media sales
representative if it be proven that (A) substantially all of the
compensation for the services performed by such media sales
representative is directly related to sales or other productivity rather
than to the number of hours worked; (B) the media sales representative
must be incorporated under the laws of this state in order to be
considered an independent contractor and shall be solely responsible for
the payment of workers' compensation premiums; (C) the services
performed by the media sales representative are performed pursuant to a
written contract executed between such media sales representative and
the person for whom the services are performed; and (D) the written
contract provided for in subparagraph (C) of this paragraph was not
executed under duress and contains the following provisions:
(i) that the media sales representative is engaged as an independent
contractor associated with the person for whom services are performed
and shall be treated as such for all purposes, including but not limited
to federal and state taxation, withholdings, and workers' compensation;
(ii) that the media sales representative (1) shall be paid a
commission based on a fixed fee rate outlined in the written contract,
if any, without deduction for taxes, which commission shall be directly
related to sales pursuant to price guidelines or other productivity
within the sales area; (2) shall not receive any compensation related to
the number of hours worked; and (3) shall not be treated as an employee
with respect to such services for federal and state tax purposes;
(iii) that the media sales representative shall be permitted to work
any hours he or she chooses subject to the restrictions in section three
hundred ninety-nine-p of the general business law;
(iv) that the media sales representative may work at any site other
than on the premises of the person for whom services are performed;
(v) that the person for whom the services are performed shall not be
responsible for any reimbursement expenses other than those outlined in
the written contract;
(vi) that the person for whom the services are performed and the media
sales representative shall comply with all articles of the labor law
that apply to such work other than article eighteen of the labor law,
but such compliance shall not affect the media sales representative's
status as an independent contractor nor should it be construed as an
indication that the media sales representative is an employee of the
person for whom the services are performed for any purpose whatsoever;
(vii) that the contract and the association created thereby may be
terminated by the media sales representative thereto at any time with
two weeks notice given to the person for whom the services are
performed.
For the purposes of this paragraph, "media sales representative" shall
include any contractor engaged in the sale or renewal of magazine
subscriptions or the sale or renewal of magazine advertising space who
(i) receives no direction or control on the methods by which they
perform services other than training on product characteristics, (ii)
are solely in control of their work schedule, and (iii) may refuse any
work assignment.
7. "Termination of employment". Employment with a covered employer
terminates on the last day on which an employee performs work in the
service of such employer; provided, however, that employment shall not
terminate on such day if the employee by agreement with the employer,
then commences, for a specified period, a leave of absence with pay or
vacation with pay, at the conclusion of which the employee will return
to work with the same employer. If notwithstanding such agreement the
employee does not so return, his employment shall be deemed to have
terminated on the last day of the period of such paid leave of absence
or such paid vacation.
8. "Injury" and "sickness" mean accidental injury, disease, infection
or illness or incapacitation as a result of being an organ donor in a
transplant operation.
9. A. "Disability" during employment means the inability of an
employee, as a result of injury or sickness not arising out of and in
the course of an employment, to perform the regular duties of his
employment or the duties of any other employment which his employer may
offer him at his regular wages and which his injury or sickness does not
prevent him from performing. "Disability" during unemployment means the
inability of an employee, as a result of injury or sickness not arising
out of and in the course of an employment, to perform the duties of any
employment for which he is reasonably qualified by training and
experience.
B. "Disability" also includes disability caused by or in connection
with a pregnancy.
10. "Benefits" means the money allowances during disability payable to
an employee who is eligible to receive such benefits, as provided in
this article.
11. "Carrier" shall include: the state fund, stock corporations,
mutual corporations and reciprocal insurers which insure the payment of
benefits provided pursuant to this article; and employers and
associations of employers or of employees and trustees authorized or
permitted to pay benefits under the provisions of this article. For
purposes of this chapter, a nonprofit property/casualty insurance
company which is licensed pursuant to subsection (b) of section six
thousand seven hundred four of the insurance law shall be deemed a stock
corporation and a nonprofit property/casualty insurance company which is
licensed as a reciprocal insurer pursuant to subsection (c) of section
six thousand seven hundred four of the insurance law shall be deemed a
reciprocal insurer.
12. "Wages" means the money rate at which employment with a covered
employer is recompensed under the contract of hiring with the covered
employer and shall include the reasonable value of board, rent, housing,
lodging, or similar advantage received under the contract of hiring.
13. "Average weekly wage." For the purpose of computing the amount of
disability benefits of an employee during any period of disability,
"average weekly wage" shall be the amount determined by dividing either
the total wages of such employee in the employment of his last covered
employer for the eight weeks or portion thereof that the employee was in
such employment immediately preceding and including his last day worked
prior to commencement of such disability, or the total wages of the last
eight weeks or portion thereof immediately preceding and excluding the
week in which the disability began, whichever is the higher amount, by
the number of weeks or portion thereof of such employment. The chairman
may by regulation prescribe reasonable procedures to determine average
weekly wage, including procedures in lieu of the foregoing for
determination of the average weekly wage of a class or classes of
employees, and may authorize reasonable deviations to facilitate
administration in the determination of average weekly wage of a class or
classes of the employees of a covered employer.
In the event the employee was not in the employment of his last
covered employer during all of such eight weeks and if the above
determination results in an average weekly wage which does not fairly
represent the normal earnings of such employee in all employments with
covered employers during such eight weeks, there may be a
redetermination of average weekly wage to reflect wages received from
all covered employers during such eight week period. The chairman may by
regulation prescribe reasonable procedures for such redetermination.
14. "A day of disability" means any day on which the employee was
prevented from performing work because of disability, including any day
which the employee uses for family leave, and for which the employee has
not received his or her regular remuneration.
15. "Family leave" shall mean any leave taken by an employee from
work: (a) to participate in providing care, including physical or
psychological care, for a family member of the employee made necessary
by a serious health condition of the family member; or (b) to bond with
the employee's child during the first twelve months after the child's
birth, or the first twelve months after the placement of the child for
adoption or foster care with the employee; or (c) because of any
qualifying exigency as interpreted under the family and medical leave
act, 29 U.S.C.S § 2612(a)(1)(e) and 29 C.F.R. S.825.126(a)(1)-(8),
arising out of the fact that the spouse, domestic partner, child, or
parent of the employee is on active duty (or has been notified of an
impending call or order to active duty) in the armed forces of the
United States.
16. "Child" means a biological, adopted, or foster son or daughter, a
stepson or stepdaughter, a legal ward, a son or daughter of a domestic
partner, or the person to whom the employee stands in loco parentis.
17. "Domestic partner" has the same meaning as set forth in section
four of this chapter.
18. "Serious health condition" means an illness, injury, impairment,
or physical or mental condition, including transplantation preparation
and recovery from surgery related to organ or tissue donation, that
involves inpatient care in a hospital, hospice, or residential health
care facility, continuing treatment or continuing supervision by a
health care provider. Continuing supervision by a health care provider
includes a period of incapacity which is permanent or long term due to a
condition for which treatment may not be effective where the family
member is under the continuing supervision of, but need not be receiving
active treatment by, a health care provider.
19. "Parent" means a biological, foster, or adoptive parent, a
parent-in-law, a stepparent, a legal guardian, or other person who stood
in loco parentis to the employee when the employee was a child.
20. "Family member" means a child, parent, grandparent, grandchild,
sibling, spouse, or domestic partner as defined in this section.
21. "Grandchild" means a child of the employee's child.
22. "Health care provider" shall mean for the purpose of family leave,
a person licensed under article one hundred thirty-one, one hundred
thirty-one-B, one hundred thirty-two, one hundred thirty-three, one
hundred thirty-six, one hundred thirty-nine, one hundred forty-one, one
hundred forty-three, one hundred forty-four, one hundred fifty-three,
one hundred fifty-four, one hundred fifty-six or one hundred fifty-nine
of the education law or a person licensed under the public health law,
article one hundred forty of the education law or article one hundred
sixty-three of the education law.
23. "Grandparent" means a parent of the employee's parent.
24. "Sibling" means a biological or adopted sibling, a half-sibling or
stepsibling.
* 25. "Construction employee" means employees who perform
construction, demolition, reconstruction, excavation, rehabilitation,
repairs, renovations, alterations, or improvements for multiple
employers pursuant to a collective bargaining agreement.
* NB Effective January 1, 2027
Covered employer. 1. An employer who has in employment, after
June thirtieth, nineteen hundred sixty-one, one or more employees on
each of at least thirty days in any calendar year, shall be a covered
employer subject to the provisions of this article from and after
January first, nineteen hundred sixty-two, or the expiration of four
weeks following the thirtieth day of such employment, whichever is the
later.
2. The provisions of subdivision one of this section shall not apply
to an employer of personal or domestic employees in a private home,
except an employer shall become a covered employer from and after the
expiration of four weeks following the employment of one or more
personal or domestic employees who work for a minimum of twenty hours
per week for such employer and are employed on each of at least thirty
days in any calendar year.
3. A covered employer, except as otherwise provided herein, shall
continue to be a covered employer until the end of any calendar year in
which he shall not have employed in employment one or more employees on
each of thirty days, and shall have duly filed with the chairman
satisfactory evidence thereof. A covered employer of employees in
personal or domestic service in a private home shall continue to be a
covered employer until the end of any calendar year in which he shall
not have employed in such service one or more employees for at least
forty hours per week and on each of at least thirty days, and shall have
duly filed with the chairman satisfactory evidence thereof.
4. An employer who by operation of law becomes successor to a covered
employer, or who acquires by purchase or otherwise the trade or business
of a covered employer, shall immediately become a covered employer.
5. Whenever an employee of a covered employer, with the consent of the
employer, engages or permits another to do any work in employment for
which the employee is employed, the employer shall be deemed for the
purpose of this article to be the employer also of such other person,
regardless of whether the employee or the employer pays for his service.
* § 203. Employees eligible for benefits under section two hundred
four of this article. Employees in employment of a covered employer for
four or more consecutive weeks and employees in employment during the
work period usual to and available during such four or more consecutive
weeks in any trade or business in which they are regularly employed and
in which hiring from day to day of such employees is the usual
employment practice shall be eligible for disability benefits as
provided in section two hundred four of this article. Employees in
employment of a covered employer for twenty-six or more consecutive
weeks and employees in employment during the work period usual to and
available during such twenty-six or more consecutive weeks in any trade
or business in which they are regularly employed and in which hiring
from day to day of such employees is the usual employment practice shall
be eligible for family leave benefits as provided in section two hundred
four of this article. Every such employee shall continue to be eligible
for family leave benefits only during employment with a covered
employer. Every such employee shall continue to be eligible for
disability benefits during such employment and for a period of four
weeks after such employment terminates regardless of whether the
employee performs any work for remuneration or profit in non-covered
employment. If during such four week period the employee performs any
work for remuneration or profit for another covered employer the
employee shall become eligible for disability benefits immediately with
respect to that employment. In addition every such employee who has
previously completed four or more consecutive weeks in employment with
the covered employer for purposes of disability benefits, or twenty-six
or more consecutive weeks in employment with the covered employer for
purposes of paid family leave, and returns to work with the same
employer after an agreed and specified unpaid leave of absence or
vacation without pay shall become eligible for benefits immediately with
respect to such employment. An employee who during a period in which he
or she is eligible to receive benefits under subdivision two of section
two hundred seven of this article returns to employment with a covered
employer and an employee who is currently receiving unemployment
insurance benefits or benefits under section two hundred seven of this
article and who returns to employment with a covered employer shall
become eligible for disability benefits immediately with respect to such
employment. An employee regularly in the employment of a single employer
on a work schedule less than the employer's normal work week shall
become eligible for disability leave benefits on the twenty-fifth day of
such regular employment and for purposes of paid family leave an
employer shall become eligible for benefits on the one hundred
seventy-fifth day of such regular employment. An employee who is
eligible for disability and family leave benefits in the employment of a
covered employer shall not be deemed, for the purposes of this article,
to have such employment terminated during any period he or she is
eligible to receive benefits under section two hundred four of this
article with respect to such employment.
* NB Effective until January 1, 2027
* § 203. Employees eligible for benefits under section two hundred
four of this article. Employees in employment of a covered employer for
four or more consecutive weeks and employees in employment during the
work period usual to and available during such four or more consecutive
weeks in any trade or business in which they are regularly employed and
in which hiring from day to day of such employees is the usual
employment practice shall be eligible for disability benefits as
provided in section two hundred four of this article. Employees in
employment of a covered employer for twenty-six or more consecutive
weeks and employees in employment during the work period usual to and
available during such twenty-six or more consecutive weeks in any trade
or business in which they are regularly employed and in which hiring
from day to day of such employees is the usual employment practice shall
be eligible for family leave benefits as provided in section two hundred
four of this article. For purposes of this article, construction
employees shall be eligible for family leave benefits with the covered
employer immediately preceding the period of family leave if the
employee was in employment and worked the employer's normal work week
for at least twenty-six of the last thirty-nine weeks with any covered
employer which is signatory to a collective bargaining agreement. Every
such employee shall continue to be eligible for family leave benefits
only during employment with a covered employer. Every such employee
shall continue to be eligible for disability benefits during such
employment and for a period of four weeks after such employment
terminates regardless of whether the employee performs any work for
remuneration or profit in non-covered employment. If during such four
week period the employee performs any work for remuneration or profit
for another covered employer the employee shall become eligible for
disability benefits immediately with respect to that employment. In
addition every such employee who has previously completed four or more
consecutive weeks in employment with the covered employer for purposes
of disability benefits, or twenty-six or more consecutive weeks in
employment with the covered employer for purposes of paid family leave,
and returns to work with the same employer after an agreed and specified
unpaid leave of absence or vacation without pay shall become eligible
for benefits immediately with respect to such employment. For purposes
of this article, construction employees who became eligible for paid
family leave benefits by working in the employment of a covered employer
and worked the employer's normal work week for at least twenty-six of
the last thirty-nine weeks, and who return to work after an agreed and
specified unpaid leave of absence or vacation without pay with the same
or different employer, shall be immediately eligible for family leave
benefits with the covered employer immediately preceding the period of
family leave. In the case of construction employees who are laid-off and
receive unemployment benefits, such employees shall be eligible for
family leave benefits with the covered employer immediately preceding
the period of family leave upon returning to work if they are otherwise
qualified by having worked in the employment of a covered employer and
worked the employer's normal work week for at least twenty-six of the
last thirty-nine weeks. An employee who during a period in which such
employee is eligible to receive benefits under subdivision two of
section two hundred seven of this article returns to employment with a
covered employer and an employee who is currently receiving unemployment
insurance benefits or benefits under section two hundred seven of this
article and who returns to employment with a covered employer shall
become eligible for disability benefits immediately with respect to such
employment. An employee regularly in the employment of a single employer
on a work schedule less than the employer's normal work week shall
become eligible for disability leave benefits on the twenty-fifth day of
such regular employment and for purposes of paid family leave an
employer shall become eligible for benefits on the one hundred
seventy-fifth day of such regular employment. An employee who is
eligible for disability and family leave benefits in the employment of a
covered employer shall not be deemed, for the purposes of this article,
to have such employment terminated during any period such employee is
eligible to receive benefits under section two hundred four of this
article with respect to such employment.
* NB Effective January 1, 2027
Retaliatory action prohibited for family leave. 1. The
provisions of section one hundred twenty of this chapter and section two
hundred forty-one of this article shall be applicable to family leave.
2. Nothing in this section shall be deemed to diminish the rights,
privileges, or remedies of any employee under any collective bargaining
agreement or employment contract.
Reinstatement following family leave. Any eligible employee
of a covered employer who takes leave under this article shall be
entitled, on return from such leave, to be restored by the employer to
the position of employment held by the employee when the leave
commenced, or to be restored to a comparable position with comparable
employment benefits, pay and other terms and conditions of employment.
The taking of family leave shall not result in the loss of any
employment benefit accrued prior to the date on which the leave
commenced. Nothing in this section shall be construed to entitle any
restored employee to the accrual of any seniority or employment benefits
during any period of leave, or any right, benefit or position to which
the employee would have been entitled had the employee not taken the
leave.
* § 203-c Health insurance during family leave. In accordance with the
Family and Medical Leave Act (29 U.S.C. §§ 2601-2654), during any period
of family leave the employer shall maintain any existing health benefits
of the employee in force for the duration of such leave as if the
employee had continued to work from the date he or she commenced family
leave until the date he or she returns to employment.
* NB Effective until January 1, 2027
* § 203-c Health insurance during family leave. In accordance with the
Family and Medical Leave Act (29 U.S.C. §§ 2601-2654), during any period
of family leave the employer shall maintain any existing health benefits
of the employee in force for the duration of such leave as if the
employee had continued to work from the date such employee commenced
family leave until the date such employee returns to employment.
Notwithstanding the foregoing, construction employees shall maintain any
existing union health plan or fund benefits in force for the duration of
family leave as if the construction employee had continued to work from
the date they commenced family leave until the date the construction
employee returns to employment. Nothing herein prevents parties to a
collective bargaining agreement for construction employees from
providing additional terms including, but not limited to, payment of
health contributions for such employees on leave time, whether leave
time is considered hours worked for purposes of eligibility in the
health plan or fund, or other terms that do not conflict with this
section.
* NB Effective January 1, 2027
Disability and family leave during employment. 1. Disability
benefits shall be payable to an eligible employee for disabilities,
beginning with the eighth day of disability and thereafter during the
continuance of disability, subject to the limitations as to maximum and
minimum amounts and duration and other conditions and limitations in
this section and in sections two hundred five and two hundred six of
this article. Family leave benefits shall be payable to an eligible
employee for the first full day when family leave is required and
thereafter during the continuance of the need for family leave, subject
to the limitations as to maximum and minimum amounts and duration and
other conditions and limitations in this section and in sections two
hundred five and two hundred six of this article. Successive periods of
disability or family leave caused by the same or related injury or
sickness shall be deemed a single period of disability or family leave
only if separated by less than three months.
2. (a) The weekly benefit for family leave that occurs (i) on or after
January first, two thousand eighteen shall not exceed eight weeks during
any fifty-two week calendar period and shall be fifty percent of the
employee's average weekly wage but shall not exceed fifty percent of the
state average weekly wage, (ii) on or after January first, two thousand
nineteen shall not exceed ten weeks during any fifty-two week calendar
period and shall be fifty-five percent of the employee's average weekly
wage but shall not exceed fifty-five percent of the state average weekly
wage, (iii) on or after January first, two thousand twenty shall not
exceed ten weeks during any fifty-two week calendar period and shall be
sixty percent of the employee's average weekly wage but shall not exceed
sixty percent of the state average weekly wage, and (iv) on or after
January first of each succeeding year, shall not exceed twelve weeks
during any fifty-two week calendar period and shall be sixty-seven
percent of the employee's average weekly wage but shall not exceed
sixty-seven percent of the New York state average weekly wage in effect.
The superintendent of financial services shall have discretion to delay
the increases in the family leave benefit level provided in
subparagraphs (ii), (iii), and (iv) of this paragraph by one or more
calendar years. In determining whether to delay the increase in the
family leave benefit for any year, the superintendent of financial
services shall consider: (1) the current cost to employees of the family
leave benefit and any expected change in the cost after the benefit
increase; (2) the current number of insurers issuing insurance policies
with a family leave benefit and any expected change in the number of
insurers issuing such policies after the benefit increase; (3) the
impact of the benefit increase on employers' business and the overall
stability of the program to the extent that information is readily
available; (4) the impact of the benefit increase on the financial
stability of the disability and family leave insurance market and
carriers; and (5) any additional factors that the superintendent of
financial services deems relevant. If the superintendent of financial
services delays the increase in the family leave benefit level for one
or more calendar years, the family leave benefit level that shall take
effect immediately following the delay shall be the same benefit level
that would have taken effect but for the delay. The weekly benefits for
family leave that occurs on or after January first, two thousand
eighteen shall not be less than one hundred dollars per week except that
if the employee's wages at the time of family leave are less than one
hundred dollars per week, the employee shall receive his or her full
wages. Benefits may be payable to employees for paid family leave taken
intermittently or for less than a full work week in increments of one
full day or one fifth of the weekly benefit.
(b) The weekly benefit which the disabled employee is entitled to
receive for disability commencing on or after May first, nineteen
hundred eighty-nine shall be one-half of the employee's weekly wage, but
in no case shall such benefit exceed one hundred seventy dollars; except
that if the employee's average weekly wage is less than twenty dollars,
the benefit shall be such average weekly wage. The weekly benefit which
the disabled employee is entitled to receive for disability commencing
on or after July first, nineteen hundred eighty-four shall be one-half
of the employee's weekly wage, but in no case shall such benefit exceed
one hundred forty-five dollars; except that if the employee's average
weekly wage is less than twenty dollars, the benefit shall be such
average weekly wage. The weekly benefit which the disabled employee is
entitled to receive for disability commencing on or after July first,
nineteen hundred eighty-three and prior to July first, nineteen hundred
eighty-four shall be one-half of the employee's average weekly wage, but
in no case shall such benefit exceed one hundred thirty-five dollars nor
be less than twenty dollars; except that if the employee's average
weekly wage is less than twenty dollars the benefit shall be such
average weekly wage. The weekly benefit which the disabled employee is
entitled to receive for disability commencing on or after July first,
nineteen hundred seventy-four, and prior to July first, nineteen hundred
eighty-three, shall be one-half of the employee's average weekly wage,
but in no case shall such benefit exceed ninety-five dollars nor be less
than twenty dollars; except that if the employee's average weekly wage
is less than twenty dollars, the benefit shall be such average weekly
wage. The weekly benefit which the disabled employee is entitled to
receive for disability commencing on or after July first, nineteen
hundred seventy and prior to July first, nineteen hundred seventy-four
shall be one-half of the employee's average weekly wage, but in no case
shall such benefit exceed seventy-five dollars nor be less than twenty
dollars; except that if the employee's average weekly wage is less than
twenty dollars the benefit shall be such average weekly wage. For any
period of disability less than a full week, the benefits payable shall
be calculated by dividing the weekly benefit by the number of the
employee's normal work days per week and multiplying the quotient by the
number of normal work days in such period of disability. The weekly
benefit for a disabled employee who is concurrently eligible for
benefits in the employment of more than one covered employer shall,
within the maximum and minimum herein provided, be one-half of the total
of the employee's average weekly wages received from all such covered
employers, and shall be allocated in the proportion of their respective
average weekly wage payments.
Disabilities, family leave and periods for which benefits are
not payable. 1. No employee shall be entitled to disability benefits
under this article:
(a) For more than twenty-six weeks minus any days taken for family
leave during any fifty-two consecutive calendar weeks during a period of
fifty-two consecutive calendar weeks or during any one period of
disability, or for more than twenty-six weeks;
(b) for any period of disability during which an employee is not under
the care of a duly licensed physician or with respect to disability
resulting from a condition of the foot which may lawfully be treated by
a duly registered and licensed podiatrist of the state of New York or
with respect to a disability resulting from a condition which may
lawfully be treated by a duly registered and licensed chiropractor of
the state of New York or with respect to a disability resulting from a
condition which may lawfully be treated by a duly licensed dentist of
the state of New York or with respect to a disability resulting from a
condition which may lawfully be treated by a duly registered and
licensed psychologist of the state of New York or with respect to a
disability resulting from a condition which may lawfully be treated by a
duly certified nurse midwife, for any period of such disability during
which an employee is neither under the care of a physician nor a
podiatrist, nor a chiropractor, nor a dentist, nor a psychologist, nor a
certified nurse midwife; and for any period of disability during which
an employee who adheres to the faith or teachings of any church or
denomination and who in accordance with its creed, tenets or principles
depends for healing upon prayer through spiritual means alone in the
practice of religion, is not under the care of a practitioner duly
accredited by the church or denomination, and provided such employee
shall submit to all physical examinations as required by this chapter.
2. No employee shall be entitled to family leave benefits under this
article:
(a) For more than twelve weeks, or the maximum duration permitted as
set forth in paragraph (a) of subdivision two of section two hundred
four of this article, during a period of fifty-two consecutive calendar
weeks, or for any period in which the family leave combined with the
disability benefits previously paid exceeds twenty-six weeks during the
same fifty-two consecutive calendar weeks;
(b) For any period of family leave wherein the notice and medical
certification as prescribed by the chair has not been filed. At the
discretion of the chair or chair's designee pursuant to section two
hundred twenty-one of this article, the family member who is the
recipient of care may be required to submit to a physical examination by
a qualified health care provider. Such examination shall be paid for by
the carrier; and
(c) As a condition of an employee's initial receipt of family leave
benefits during any fifty-two consecutive calendar weeks in which an
employee is eligible for these benefits, an employer may offer an
employee who has accrued but unused vacation time or personal leave
available at the time of use of available family leave to choose whether
to charge all or part of the family leave time to accrued but unused
vacation or personal leave, and receive full salary, or to not charge
time to accrued but unused vacation or personal leave, and receive the
benefit as set forth in section two hundred four of this article. An
employer that pays full salary during a period of family leave may
request reimbursement in accordance with section two hundred
thirty-seven of this article. With the election of either option, the
employee shall receive the full protection of the reinstatement
provision set forth in section two hundred three-b of this article, and
shall concurrently use available family medical leave act and paid
family leave credits. In no event can an employee utilize family leave
beyond twelve weeks, or the maximum duration permitted as set forth in
paragraph (a) of subdivision two of section two hundred four of this
article, per any fifty-two week period set forth in this article. This
paragraph may not be construed in a manner that relieves an employer of
any duty of collective bargaining the employer may have with respect to
the subject matter of this paragraph.
3. No employee shall be entitled to disability or family leave
benefits under this article:
(a) for any disability occasioned by the wilful intention of the
employee to bring about injury to or the sickness of himself or another,
or resulting from any injury or sickness sustained in the perpetration
by the employee of an illegal act;
(b) for any day of disability or family leave during which the
employee performed work for remuneration or profit;
(c) for any day of disability or family leave for which the employee
is entitled to receive from his or her employer, or from a fund to which
the employer has contributed, remuneration or maintenance in an amount
equal to or greater than that to which he or she would be entitled under
this article; but any voluntary contribution or aid which an employer
may make to an employee or any supplementary benefit paid to an employee
pursuant to the provisions of a collective bargaining agreement or from
a trust fund to which contributions are made pursuant to the provisions
of a collective bargaining agreement shall not be considered as
continued remuneration or maintenance for this purpose;
(d) for any period in respect to which such employee is subject to
suspension or disqualification of the accumulation of unemployment
insurance benefit rights, or would be subject if he or she were eligible
for such benefit rights, except for ineligibility resulting from the
employee's disability;
(e) for any disability due to any act of war, declared or undeclared;
(f) for any disability or family leave commencing before the employee
becomes eligible to benefits under this section.
4. An employee may not collect benefits concurrently under both
subdivisions one and two of this section.
5. In any case in which the necessity for family leave is foreseeable
based on an expected birth or placement, the employee shall provide the
employer with not less than thirty days notice before the date the leave
is to begin, of the employee's intention to take family leave under this
article, except that if the date of the birth or placement requires
leave to begin in less than thirty days, the employee shall provide such
notice as is practicable. In any case in which the necessity for family
leave is foreseeable based on planned medical treatment, the employee
shall provide the employer with not less than thirty days notice, before
the date the leave is to begin, of the employees intention to take
family leave under this article, except that if the date of the
treatment requires leave to begin in less than thirty days, the employee
shall provide such notice as is practicable.
Non-duplication of benefits. 1. No disability benefits shall be
payable under section two hundred four or two hundred seven of this
article:
(a) in a weekly benefit amount which, together with any amount that
the employee receives or is entitled to receive for the same period or
any part thereof as a permanent disability benefit or annuity under any
governmental system or program, except under a veteran's disability
program, or under any permanent disability policy or program of an
employer for whom he or she has performed services, would, if
apportioned to weekly periods, exceed his or her weekly benefit amount
under this section, provided however, that there shall be no offset
against the benefits set forth in this article if the claim for
disability benefits is based on a disability other than the permanent
disability for which the aforesaid permanent disability benefit or
annuity was granted;
(b) with respect to any week for which payments are received under the
unemployment insurance law or similar law of this state or of any other
state or of the United States;
(c) subject to the provisions of subdivision two of this section, for
any period with respect to which benefits, compensation or other
allowances (other than workers' compensation benefits for a permanent
partial disability occurring prior to the disability for which benefits
are claimed hereunder) are paid or payable under this chapter, the
volunteer firefighters' benefit law, or any other workers' compensation
act, occupational disease act or similar law, or under any employers'
liability act or similar law; under any other temporary disability or
cash sickness benefits act or similar law; under section six hundred
eighty-eight, title forty-six, United States code; under the federal
employers' liability act; or under the maritime doctrine of maintenance,
wages and cure.
2. If an employee who is eligible for disability benefits under
section two hundred three or two hundred seven of this article is
disabled and has claimed or subsequently claims workers' compensation
benefits under this chapter or benefits under the volunteer
firefighters' benefit law or the volunteer ambulance workers' benefit
law, and such claim is controverted on the ground that the employee's
disability was not caused by an accident that arose out of and in the
course of his employment or by an occupational disease, or by an injury
in line of duty as a volunteer firefighter or volunteer ambulance
worker, the employee shall be entitled in the first instance to receive
benefits under this article for his or her disability. If benefits have
been paid under this article in respect to a disability alleged to have
arisen out of and in the course of the employment or by reason of an
occupational disease, or in line of duty as a volunteer firefighter or a
volunteer ambulance worker, the employer or carrier or the chair making
such payment may, at any time before award of workers' compensation
benefits, or volunteer firefighters' benefits or volunteer ambulance
workers' benefits, is made, file with the board a claim for
reimbursement out of the proceeds of such award to the employee for the
period for which disability benefits were paid to the employee under
this article, and shall have a lien against the award for reimbursement,
notwithstanding the provisions of section thirty-three of this chapter
or section twenty-three of the volunteer firefighters' benefit law or
section twenty-three of the volunteer ambulance workers' benefit law
provided the insurance carrier liable for payment of the award receives,
before such award is made, a copy of the claim for reimbursement from
the employer, carrier or chair who paid disability benefits, or provided
the board's decision and award directs such reimbursement therefrom.
3. No family leave benefits shall be payable under section two hundred
four of this article:
(a) During periods when the employee is receiving total disability
payments pursuant to a claim for workers' compensation, volunteer
firefighters' benefits or volunteer ambulance workers' benefits, except
that when the employee is receiving payments for partial disability or
reduced earnings under such laws, the family leave benefit, when
combined with the benefits under such laws shall not exceed the average
weekly wage in the employment for which family leave benefits are
sought;
(b) To an employee who is not employed or is on administrative leave
from his or her employment;
(c) To an employee during periods where the employee is collecting
sick pay or paid time off from the employer; and
(d) for any day in which claimant works at least part of that day for
remuneration or profit for the covered employer or for any other
employer while working for remuneration or profit, for him or herself,
or another person or entity, during the same or substantially similar
working hours as those of the covered employer from which family leave
benefits are claimed, except that occasional scheduling adjustments with
respect to secondary employments shall not prevent receipt of family
leave benefits.
4. Unless otherwise expressly permitted by the employer, benefits
available under 29 U.S. Code Chapter 28 (The Family and Medical Leave
Act) must be used concurrently with family leave benefits. For a
subsequent unrelated disability, an employee may seek benefits up to the
maximum number of available weeks permitted in this article.
5. A covered employer is not required to permit more than one employee
to use the same period of family leave to care for the same family
member.
Disability while unemployed. 1. Employees entitled to
unemployment insurance benefits. An employee whose employment with a
covered employer is terminated and who during a period of unemployment
within twenty-six weeks immediately following such termination of
employment shall become ineligible for benefits currently being claimed
under the unemployment insurance law solely because of disability
commencing after June thirtieth, nineteen hundred fifty, and who on the
day such disability commences is not employed or working for
remuneration or profit and is not then otherwise eligible for benefits
under this article, shall be entitled to receive disability benefits as
herein provided for each week of such disability for which week he would
have received unemployment insurance benefits if he were not so
disabled. The weekly benefit of such disabled employee shall be computed
in the same manner as provided in subdivision two of section two hundred
four, and the benefits he is entitled to receive shall be subject to the
limitations as to maximum and minimum amounts and duration and other
conditions and limitations prescribed in sections two hundred four, two
hundred five and two hundred six.
2. Employees not eligible for unemployment insurance benefits. An
employee whose employment with a covered employer is terminated and who
was in employment of one or more covered employers and was paid wages of
at least thirteen dollars in such employment in each of twenty calendar
weeks during the thirty calendar weeks immediately preceding the date he
last worked for such covered employer, and who during a period of
unemployment within twenty-six weeks immediately following such
termination of employment is not eligible to benefits under the
unemployment insurance law because of lack of qualifying wages but who
during unemployment has evidenced his continued attachment to the labor
market, shall be eligible for benefits under the provisions of this
subdivision for disability commencing after June thirtieth, nineteen
hundred fifty. If such employee becomes disabled and continues to be
disabled for at least eight consecutive days during such twenty-six week
period and on the day such disability commences he is not employed or
working for remuneration or profit and is not then otherwise eligible
for benefits under this article, he shall be entitled to receive
disability benefits, as herein provided, beginning with the eighth
consecutive day of such disability, for each week of such disability
thereafter. The weekly benefit of such disabled employee shall be
computed in the same manner as provided in subdivision two of section
two hundred four, and the benefits he is entitled to receive shall be
subject to the limitations as to maximum and minimum amounts and
duration and other conditions and limitations prescribed in sections two
hundred four, two hundred five and two hundred six.
3. Payment of benefits. The benefits payable under this section shall
be subject to the provisions and limitations generally applicable to
disability benefits payable under this article, and shall be paid by the
chairman out of any assets in the fund created by section two hundred
fourteen. The chairman may require an employee claiming benefits under
this section to file proofs of disability and of his employment and
wages, and other proofs reasonably necessary for the chairman to make in
the first instance the determination of eligibility and benefit rights
under this section; and may require his employer or his former employer
or employers to file reports of employment and wages and other
information reasonably necessary for such determination. The chairman
may make administrative regulations for such determinations. The
chairman may also by regulation establish reasonable procedures for
determining pro rata benefits payable with respect to disability periods
of less than one week. Any employee claiming benefits under this section
whose claim is rejected in whole or in part by the chairman, shall be
entitled to request a review by the board and shall have all the rights
with respect to contested claims provided in this article.
4. Qualification notwithstanding casual non-covered employment. An
employment of not more than four weeks with a non-covered employer or
employers occurring within such twenty-six weeks period shall not
disqualify an employee from benefits provided such employee was
otherwise eligible to receive benefits under this section at the time
such employment for a non-covered employer commenced.
5. The foregoing provisions of this section shall not apply to family
leave benefits, as family leave benefits are not available to employees
that are not employed at the time family leave is requested by filing
the notice and medical certification required by the chair.
Payment of disability and family leave benefits. 1. Benefits
provided under this article shall be paid periodically and promptly and,
except as to a contested period of disability or family leave, without
any decision by the board, or designee of the chair pursuant to section
two hundred twenty-one of this article. The first payment of benefits
shall be due on the fourteenth day of disability or family leave and
benefits for that period shall be paid directly to the employee within
four business days thereafter or within four business days after the
filing of required proof of claim, whichever is the later. If the
employer or carrier rejects an initial claim for family leave benefits,
the employer or carrier must notify the employee in a manner prescribed
by the chair within eighteen days of filing of the proof of claim.
Failure to timely reject shall constitute a waiver of objection to the
family leave claim. Thereafter benefits shall be due and payable
bi-weekly in like manner. The chair or chair's designee, pursuant to
section two hundred twenty-one of this article, may determine that
benefits may be paid monthly or semi-monthly if wages were so paid, and
may authorize deviation from the foregoing requirements to facilitate
prompt payment of benefits. Any inquiry which requires the employee's
response in order to continue benefits uninterrupted or unmodified shall
provide a reasonable time period in which to respond and include a clear
and prominent statement of the deadline for responding and consequences
of failing to respond.
2. The chair and superintendent of financial services may, whenever
such information is deemed necessary, require any carrier to file in
form prescribed by the chair a report or reports as to any claim or
claims, including (but without limitation) dates of commencement and
termination of benefit payments and amount of benefits paid under this
article. The chair and superintendent of financial services may also
require annually information in respect to the aggregate of benefits
paid, the number of claims allowed and disallowed, the average benefits
and duration of benefit periods, the amount of payrolls covered and such
other information as the chair may deem necessary for the purposes of
administering this article. If the carrier is providing benefits in
respect to more than one employer, the chair and superintendent of
financial services may require that such information be shown separately
as to those employers who are providing only benefits that are
substantially the same as the benefits required in this article. The
chair and superintendent of financial services may prescribe the format
of such report and may promulgate regulations to effectuate this
article.
Contribution of employees for disability and family leave
benefits. 1. Every employee in the employment of a covered employer
shall contribute to the cost of providing disability and after January
first, two thousand eighteen, family leave benefits under this article,
to the extent and in the manner herein provided.
2. The special contribution of each such employee to the accumulation
of funds to provide benefits for disabled unemployed shall be as
provided in subdivision one of section two hundred fourteen of this
article.
3. (a) Disability benefits. The contribution of each such employee to
the cost of disability benefits provided by this article shall be
one-half of one per centum of the employee's wages paid to him or her on
and after July first, nineteen hundred fifty, but not in excess of sixty
cents per week.
(b) Family leave benefits. On June first, two thousand seventeen and
annually thereafter on September first, the superintendent of financial
services shall set the maximum employee contribution, using sound
actuarial principles and the reports provided in section two hundred
eight of this article. No employer shall be required to fund any portion
of the family leave benefit.
4. Notwithstanding any other provision of law, the employer is
authorized to collect from his or her employees, except as otherwise
provided in any plan or agreement under the provisions of subdivisions
four or five of section two hundred eleven of this article, the
contribution provided under subdivisions two and three of this section,
through payroll deductions. If the employer shall not make deduction for
any payroll period he or she may thereafter, but not later than one
month after payment of wages, collect such contribution through payroll
deduction.
5. In collecting employee contributions through payroll deductions,
the employer shall act as the agent of his or her employees and shall
use the contributions only to provide disability and family leave
benefits as required by this article. In no event may the employee's
annual contribution for family leave exceed his or her per capita share
of the actual annual premium charged for the same year and must be
determined consistent with the principle that employees should pay the
total costs of family leave premium. In no event may the employee's
weekly contribution for disability premium exceed one-half of one per
centum of the employee's wages paid to him or her, but not in excess of
sixty cents per week. After June thirtieth, nineteen hundred fifty, if
the employer is not providing, or to the extent that he or she is not
then providing, for the payment of disability benefits to his or her
employees by insuring with the state fund or with another insurance
carrier, he or she shall keep the contributions of his or her employees
as trust funds separate and apart from all other funds of the employer.
The payment of such contributions by the employer to a carrier providing
for the payment of such benefits shall discharge the employer from
responsibility with respect to such contributions.
Employer contributions. 1. Every covered employer shall, on and
after January first, nineteen hundred fifty, contribute the cost of
providing disability benefits in excess of the contributions collected
from his or her employees, to the extent and in the manner provided in
this article.
2. The special contribution of each covered employer to the
accumulation of funds to provide benefits for disabled unemployed shall
be as provided in subdivision one of section two hundred fourteen of
this article.
3. The contribution of every covered employer to the cost of providing
disability benefits after June thirtieth, nineteen hundred fifty, shall
be the excess of such cost over the amount of the contributions of his
or her employees.
4. No profit shall be derived by any employer or association of
employers or of employees from providing payment of disability and
family leave benefits under this article. All funds representing
contributions of employers and employees, and increments thereon, held
by employers or associations of employers or of employees authorized or
permitted to pay benefits under the provisions of this article, and by
trustees paying benefits under plans or agreements meeting the
requirements of section two hundred eleven of this article, shall be
trust funds and shall be expended only to provide for the payment of
benefits to employees and for the costs of administering this article
and for the support of the fund established under section two hundred
fourteen of this article.
Provision for payment of benefits. A covered employer shall,
with his or her own contributions and the contributions of his
employees, provide disability and after January first, two thousand
eighteen, family leave benefits to his or her employees in one or more
of the following ways:
1. by insuring and keeping insured the payment of such benefits in the
state fund, or
2. by insuring and keeping insured the payment of such benefits with
any stock or mutual corporation or reciprocal insurer authorized to
transact the business of accident and health insurance in this state, or
3. by furnishing satisfactory proof to the chair of the employers
financial ability to pay such benefits, in which case the chair shall
require the deposit of such securities as the chair may deem necessary
consistent with the provisions of subdivision three of section fifty of
this chapter. An association of employers or employees authorized to pay
benefits under this article or the trustee or trustees paying benefits
under a plan or agreement authorized under subdivisions four and five of
this section, may with the approval of the chair furnish such proof and
otherwise comply with the provisions of this section to provide
disability and family leave benefits to employees under such plan or
agreement.
4. by a plan in existence on the effective date of this article. If on
the effective date of this article the employees of a covered employer
or any class or classes of such employees are entitled to receive
disability and family leave benefits under a plan or agreement which
remains in effect on July first, nineteen hundred fifty, the employer,
subject to the requirements of this section, shall be relieved of
responsibility for making provision for benefit payments required under
this article until the earliest date, determined by the chair for the
purposes of this article, upon which the employer shall have the right
to discontinue the provisions thereof or to discontinue his
contributions towards the cost. Any such plan or agreement may be
extended, with or without modification, by agreement or collective
bargaining between an employer or employers or association of employers
and an association of employees, in which event the period for which the
employer is relieved of such responsibility shall include such period of
extension. Any other plan or agreement in existence on the effective
date of this article which the employer may, by his or her sole act,
terminate at any time, or with respect to which he or she is not
obligated to continue for any period to make contributions, may be
accepted by the chair as satisfying the obligation to provide for the
payment of benefits under this article if such plan or agreement
provides benefits at least as favorable as the disability and family
leave benefits provided by this article and does not require
contributions of any employee or of any class or classes of employees in
excess of the statutory amount provided in subdivision three of section
two hundred nine of this article, subdivision three, except by agreement
and provided the contribution is reasonably related to the value of the
benefits as determined by the chair. The chair may require that the
employer shall enter into an agreement in writing with the chair that he
or she will pay the assessments set forth in sections two hundred
fourteen and two hundred twenty-eight and that until he or she shall
have filed written notice with the chair of his or her election to
terminate such plan or agreement or to discontinue making necessary
contributions to its cost, he or she will continue to provide for the
payment of the disability and family leave benefits under such plan or
agreement.
During any period in which any plan or agreement or extension thereof
authorized under this subdivision provides for payment of benefits under
this article, the responsibility of the employer and the obligations and
benefits of the employees shall be as provided in said plan or agreement
rather than as provided under this article, other than the benefits
provided in section two hundred seven, and provided the employer or
carrier has agreed to pay the assessments described in sections two
hundred fourteen and two hundred twenty-eight.
Any such plan or agreement may be extended with or without
modification, provided the benefits under such plan or agreement, as
extended or modified, shall be found by the chair to be at least as
favorable as the benefits provided by this article.
5. by a new plan or agreement. After the effective date of this
article, a new plan or agreement with a carrier may be accepted by the
chair as satisfying the obligation to provide for the payment of
benefits under this article if such plan or agreement shall provide
benefits at least as favorable as the disability and family leave
benefits provided by this article and does not require contributions of
any employee or of any class or classes of employees in excess of the
statutory amount provided in section two hundred nine, subdivision
three, except by agreement and provided the contribution is reasonably
related to the value of the benefits as determined by the chair. Any
such plan or agreement shall continue until written notice filed with
the chair of intention to terminate such plan or agreement, and any
modification of such plan or agreement shall be subject to the written
approval of the chair.
During any period in which any plan or agreement or extension thereof
authorized under this subdivision provides for payment of benefits under
this article, the responsibility of the employer and the obligations and
benefits of the employees shall be as provided in said plan or agreement
rather than as provided under this article, other than the benefits
provided in section two hundred seven, and provided the employer or
carrier has agreed to pay the assessments described in sections two
hundred fourteen and two hundred twenty-eight.
6. if any plan or agreement authorized under subdivisions four and
five of this section covers less than all of the employees of a covered
employer, the provisions of this article shall apply with respect to his
remaining employees not covered under such plan or agreement.
7. Premiums for policies providing disability or family leave benefits
in accordance with this article shall be calculated in accordance with
applicable provisions of the insurance law, including subsection (n) of
section four thousand two hundred and thirty-five of such law.
8. An employer providing disability benefits coverage pursuant to
subdivision three of this section may obtain coverage for family leave
benefits separately pursuant to subdivision one or subdivision two of
this section.
The chairman may make reasonable regulations for the filing under
subdivisions four and five of this section of plans and agreements to
provide for the payment of benefits under this article.
Voluntary coverage. 1. Any employer not required by this
article to provide for the payment of disability or family leave
benefits to his employees, or to any class or classes thereof, may
become a covered employer or bring within the provisions of this article
such employees or class or classes thereof by voluntarily electing to
provide for payment of such benefits in one or more of the ways set
forth in section two hundred eleven of this article; but such election
shall be subject to the approval of the chair, and if the employees are
required to contribute to the cost of such benefits the assent within
thirty days before such approval is granted, of more than one-half of
such employees shall be evidenced to the satisfaction of the chair. On
approval by the chair of such election to provide benefits, all the
provisions of this article shall become and continue applicable as if
the employer were a covered employer as defined in this article. The
obligation to continue as a covered employer with respect to employees
for whom provision of benefits is not required under this article, may
be discontinued by such employer on ninety days notice to the chair in
writing and to his or her employees, after he or she has provided for
payment of benefits for not less than one year and with such provision
for payment of obligations incurred on and prior to the termination date
as the chair may approve.
2. Notwithstanding the definition of "employer" and "employment" in
section two hundred one of this article, a public authority, a municipal
corporation or a fire district or other political subdivision may become
a covered employer for the purpose of providing disability benefits
under this article by complying with the provisions of subdivision one
of this section and may discontinue such status only as provided in that
subdivision.
3. Notwithstanding the definition of "employment" in section two
hundred one of this article, service as a farm laborer may become
covered employment by the employer complying with the provisions of
subdivision one of this section and such employer may discontinue such
status only as provided in that subdivision.
4. (a) An executive officer of a corporation who at all times during
the period involved owns all of the issued and outstanding stock of the
corporation and holds all of the offices pursuant to paragraph (e) of
section seven hundred fifteen of the business corporation law or two
executive officers of a corporation who at all times during the period
involved between them own all of the issued and outstanding stock of
such corporation and hold all such offices provided, however, that each
officer must own at least one share of stock and who is the executive
officer or who are the executive officers of a corporation having other
persons who are employees required to be covered under this article,
shall be deemed to be included in the corporation's disability and
family leave benefits insurance contract or covered by a certificate of
self-insurance or a plan under section two hundred eleven of this
article, unless the officer or officers elect to be excluded from the
coverage of this article. Such election shall be made by any such
corporation filing with the insurance carrier, or the chair of the
workers' compensation board in the case of self-insurance, upon a form
prescribed by the chair, a notice that the corporation elects to exclude
the executive officer or officers of such corporation named in the
notice from the coverage of this article. Such election shall be
effective with respect to all policies issued to such corporation by
such insurance carrier as long as it shall continuously insure the
corporation. Such election shall be final and binding upon the executive
officer or officers named in the notice until revoked by the
corporation.
(b) Notwithstanding the definition of "employer" in section two
hundred one of this article, a sole proprietor, member of a limited
liability company or limited liability partnership, or other
self-employed person may become a covered employer under this article by
complying with the provisions of subdivision one of this section.
5. A spouse who is an employee of a covered employer shall be deemed
to be included in the employer's disability and family leave benefits
insurance contract or covered by a certificate of self-insurance or a
plan under section two hundred eleven of this article, unless the
employer elects to exclude such spouse from the coverage of this
article. Such election shall be made by any such employer filing with
the insurance carrier, or the chair of the workers' compensation board
in the case of self-insurance, upon a form prescribed by the chair, a
notice that the employer elects to exclude such spouse named in the
notice from the coverage of this article. Such election shall be
effective with respect to all policies issued to such employer by such
insurance carrier as long as it shall continuously insure the employer.
Such election shall be final and binding upon the spouse named in the
notice until revoked by the employer.
Notwithstanding the definition of "employer" and "employment"
set forth in section two hundred one of this article and the requirement
for insurance policies to offer both disability and family leave
coverage set forth in two hundred twenty six of this article, the state,
any political subdivision of the state, a public authority or any other
governmental agency or instrumentality, may elect to become a covered
employer solely for the purpose of family leave benefits. Coverage for
family leave benefits may be secured by a public employer, as that term
is defined in subdivision one of section two hundred twelve-b of this
article, as permitted by this article, including as applicable section
two hundred eleven, subdivision four of section fifty, or section
eighty-eight-c. The provider of family leave coverage for such public
employees shall be exempt from the requirement that insurance policies
offer both disability and family leave benefits in section two hundred
twenty-six of this article.
Public employees; public employees represented by an employee
organization; employee opt in.
1. For purposes of this section, "public employee" means any employee
of the state, any political subdivision of the state, a public authority
or any other governmental agency or instrumentality. "Public employer"
means the state, any political subdivision of the state, a public
authority or any other governmental agency or instrumentality thereof.
"Employee organization" shall have the same meaning set forth in section
two hundred one of the civil service law.
2. Public employers shall provide benefits for family leave to public
employees in accordance with the procedures and terms set forth in
subdivision three of this section.
3. (a) An employee organization may, pursuant to collective
bargaining, opt in to paid family leave benefits on behalf of those
public employees it is either certified or recognized to represent,
within the meaning of article fourteen of the civil service law. Nothing
in this section shall prohibit an agreement to opt in to paid family
leave between the employee organization and any public employer. An
employee organization that has opted in to paid family leave benefits
may, pursuant to collective bargaining, opt out of it as is mutually
agreed upon between the employee organization and any public employer.
b. For public employees who are not represented by an employee
organization, the public employer may opt-in to paid family leave
benefits within ninety days notice to such public employees. Following
opt-in by a public employer for public employees not represented by an
employee organization, the public employer may opt-out of paid family
leave benefits with twelve months notice to those public employees.
4. In the absence of any contrary statement in a collectively
negotiated agreement under article fourteen of the civil service law, a
public employer may require public employees who opt in under this
section to provide the maximum employee contribution, as defined in
paragraph (b) of subdivision three of section two hundred nine of this
article.
Non-compliance or default. 1. Whenever a covered employer does
not comply with this article by providing for the payment of disability
and family leave benefits to his or her employees in one or more of the
ways provided in section two hundred eleven of this article or whenever
a carrier fails to pay the benefits required by this article to
employees of a covered employer, then such employer shall be fully and
directly liable to each of his or her employees for the payment of
benefits provided by this article. The amount of the benefits to which
employees of such employers are entitled under this article and
attendance fees of any attending physicians or attending podiatrists or
health care provider fixed pursuant to subdivision two of section two
hundred thirty-two of this article shall, on order of the chair, be paid
out of the fund established under section two hundred fourteen of this
article. In case of non-compliance of the employer, such employer shall
forthwith pay to the chair, for credit to the fund, the sum so expended
or one percent of his or her payroll for his or her employees in
employment during the period of non-compliance, whichever is greater;
provided, however, that if it shall appear to the satisfaction of the
chair that the default in payment of benefits or the non-compliance of
the employer otherwise with his or her obligation under this article was
inadvertent, the chair may fix the sum payable in such case for
non-compliance or default at the amount paid out of the fund and a sum
less than one percent of such payroll, and in addition the penalties for
non-compliance imposed under this article. In case of failure of the
carrier to pay benefits, the employer shall forthwith pay to the chair,
for credit to the fund, the sum so expended.
2. Where a carrier authorized by the superintendent of financial
services to do business in this state has failed to pay benefits on
behalf of an employer pursuant to this article solely because an order
of rehabilitation, conservation or liquidation has been issued by a
court of competent jurisdiction of this or any other state or
jurisdiction, the provisions of subdivision one of this section shall
not apply as they relate to: (a) the payment of benefits to an employee
if the policy of the employer's carrier is subject to the protection
afforded by any guaranty fund pursuant to the insurance law; or (b) the
reimbursement to the fund, created under section two hundred fourteen of
this article, by an employer whose carrier has failed to pay benefits.
3. The provisions of section one hundred forty-one-b of this chapter
shall not apply to violations of this section after January first, two
thousand eighteen and before January first, two thousand twenty.
Thereafter, in the event an employer is subject to debarment solely due
to a penalty for violation of this section, the chair may, in the
interests of justice, restore the employer's eligibility to submit a bid
on or be awarded any public work contract or subcontract. The chair may
exercise this authority only if it is the employer's first time
violation of section one hundred forty-one-b of this chapter; the
employer is not liable for any outstanding workers' compensation,
disability or family leave claims as a result of the lack of coverage;
and the employer has paid all fines, assessments, and penalties
associated with the lack of coverage.
Special fund for disability benefits. There is hereby created a
fund which shall be known as the special fund for disability benefits to
provide for the payment of disability benefits under sections two
hundred seven, two hundred thirteen and attendance fees under section
two hundred thirty-two of this article.
1. As promptly as practicable after April first, in each year, the
chairman shall ascertain the condition of the fund, and if as of any
such date the net assets of the fund shall be one million dollars or
more below the sum of twelve million dollars, the chairman shall assess
and collect an amount sufficient to restore the fund to an amount equal
to twelve million dollars.. Such assessment shall be included in the
assessment rate established pursuant to subdivision two of section one
hundred fifty-one of this chapter. Such assessments shall be deposited
with the commissioner of taxation and finance and transferred to the
benefit of such fund upon payment of debt service, if any, pursuant to
section one hundred fifty-one of this chapter.
2. Whenever the net assets of the fund shall be less than three
million dollars and the disability claims currently being paid shall
indicate the necessity of supplementing the assets of the fund the
chairman may transfer from monies collected pursuant to subdivision two
of section one hundred fifty-one of this chapter an amount sufficient in
the discretion of the chairman for the needs of the fund, but not in
excess of an amount sufficient to restore the fund to twelve million
dollars.
3. All contributions and assessments received by the chairman under
the provisions of this section shall be credited to the fund herein
established and deposited by the chairman to the credit of the
commissioner of taxation and finance for the benefit of the fund. The
superintendent of financial services may examine into the condition of
the fund at any time on his own initiative or upon the request of the
chairman.
Commissioner of taxation and finance custodian of fund. The
commissioner of taxation and finance shall be the custodian of the
special fund for disability benefits and all disbursements therefrom
shall be paid by him upon drafts signed by the chairman or those
authorized by the chairman for that purpose. The commissioner of
taxation and finance shall give a separate and additional bond in an
amount to be fixed by and with sureties approved by the state
comptroller conditioned for the faithful performance of his duty as
custodian of the fund. The commissioner of taxation and finance shall
deposit any portion of the fund not needed for immediate use, in the
manner and subject to all the provisions of law respecting the deposit
of other state funds by him. The commissioner of taxation and finance
may invest any surplus or reserve moneys thereof in securities of the
United States or the state of New York and in interest bearing
certificates of deposit of a bank or trust company located and
authorized to do business in this state or of a national bank located in
this state secured by a pledge of direct obligations of the United
States or of the state of New York, or in accordance with the provisions
of section ninety-eight-a of the state finance law, in an amount equal
to the amount of such certificates of deposit, and may sell any such
securities or certificates of deposit if advisable for the proper
administration of such fund. Interest earned by such portion of the fund
deposited or invested by the commissioner of taxation and finance shall
be collected by him and placed to the credit of the fund. The
commissioner of taxation and finance may issue checks on the fund for
the transfers of moneys between depositories and for the purpose of
making investments for the fund.
Disposition of uncommitted balance of employees' contributions.
Whenever any arrangement for the provision of benefits as set forth in
section two hundred eleven is terminated, any uncommitted balance of
employee contributions shall be utilized only to pay accrued benefits
and to provide benefits under this article. On the liquidation of a
covered employer's business, or when he shall cease to be a covered
employer, any such sums so remaining in excess of those required to
discharge obligations under this article may be used for the benefit of
employees on a reasonable basis approved by the chairman, and any such
sums not so used shall be promptly paid to the chairman for deposit in
the fund created under section two hundred fourteen.
Notice and proof of claim. 1. Written notice and proof of
disability or proof of need for family leave shall be furnished to the
employer by or on behalf of the employee claiming benefits or, in the
case of a claimant under section two hundred seven of this article, to
the chair, within thirty days after commencement of the period of
disability. Additional proof shall be furnished thereafter from time to
time as the employer or carrier or chair may require but not more often
than once each week. Such proof shall include a statement of disability
by the employee's attending physician or attending podiatrist or
attending chiropractor or attending dentist or attending psychologist or
attending certified nurse midwife or family leave care recipient's
health care provider, or in the case of an employee who adheres to the
faith or teachings of any church or denomination, and who in accordance
with its creed, tenets or principles depends for healing upon prayer
through spiritual means alone in the practice of religion, by an
accredited practitioner, containing facts and opinions as to such
disability in compliance with regulations of the chair. Failure to
furnish notice or proof within the time and in the manner above provided
shall not invalidate the claim but no benefits shall be required to be
paid for any period more than two weeks prior to the date on which the
required proof is furnished unless it shall be shown to the satisfaction
of the chair not to have been reasonably possible to furnish such notice
or proof and that such notice or proof was furnished as soon as
possible; provided, however, that no benefits shall be paid unless the
required proof of disability is furnished within the period of actual
disability or family leave that does not exceed the statutory maximum
period permitted under section two hundred four of this article. No
limitation of time provided in this section shall run as against any
disabled employee who is mentally incompetent, or physically incapable
of providing such notice as a result of a serious medical condition, or
a minor so long as such person has no guardian of the person and/or
property.
2. An employee claiming disability benefits shall, as requested by the
employer or carrier, submit himself or herself at intervals, but not
more than once a week, for examination by a physician or podiatrist or
chiropractor or dentist or psychologist or certified nurse midwife
designated by the employer or carrier. All such examinations shall be
without cost to the employee and shall be held at a reasonable time and
place.
3. The chair or chair's designee, pursuant to section two hundred
twenty-one of this article, may direct the claimant or family leave care
recipient to submit to examination by a health care provider designated
by him or her in any case in which the claim to disability or family
leave benefits is contested and in claims arising under section two
hundred seven of this article, and in other cases as the chair or board
may require.
4. Refusal of the claimant or family leave care recipient without good
cause to submit to any such examination shall disqualify the claimant or
employee from all benefits hereunder for the period of such refusal,
except as to benefits already paid.
5. If benefits required to be paid by this article have been paid to
an employee, further payments for the same disability or family leave
shall not be barred solely because of failure to give notice or to file
proof of disability for the period or periods for which such benefits
have been paid.
6. In the event that a claim for disability benefits is rejected, the
carrier or employer shall send by first class mail written notice of
rejection to the employee within forty-five days of receipt of proof of
disability. Failure to mail such written notice of rejection within the
time provided, shall bar the employer or carrier from contesting
entitlement to benefits for any period of disability prior to such
notice but such failure may be excused by the chair if it can be shown
to the satisfaction of the chair not to have been reasonably possible to
mail such notice and that such notice was mailed as soon as possible.
Such notice shall include a statement, in a form prescribed by the
chair, to the effect that the employee may, for the purpose of review,
file notice that his or her claim has not been paid as set forth in
section two hundred twenty-one of this article.
Disability benefit rights inalienable. 1. Any agreement by an
employee to waive his rights under this article shall be void.
2. Disability benefits payable under this article shall not be
assigned or released, except as provided in this article, and shall be
exempt from all claims of creditors and from levy, execution and
attachment or other remedy for recovery or collection of a debt, which
exemption may not be waived provided, however, that such benefits shall
be subject to an income execution or order for support enforcement
pursuant to section fifty-two hundred forty-one or fifty-two hundred
forty-two of the civil practice law and rules.
Enforcement of payment in default. In case of a default in the
payment of any benefits, assessments or penalties payable under this
article by an employer who has failed to comply with the provisions of
section two hundred eleven of this article or refusal of such employer
to reimburse the fund under section two hundred fourteen of this article
for the expenditures made therefrom pursuant to section two hundred
thirteen of this article or to deposit within ten days after demand the
estimated value of benefits not presently payable, the chair may file
with the county clerk for the county in which the employer has his
principal place of business (1) a certified copy of the decision of the
board, or alternative dispute resolution association designated by the
chair pursuant to section two hundred twenty-one of this article, or
order of the chair, or (2) a certified copy of the demand for deposit of
security, and thereupon judgment must be entered in the supreme court by
the clerk of such county in conformity therewith immediately upon such
filing.
Penalties. 1. Any employer who fails to make provision for
payment of disability or family leave benefits as required by section
two hundred eleven of this article within ten days following the date on
which such employer becomes a covered employer as defined in section two
hundred two of this article shall be guilty of a misdemeanor and upon
conviction be punishable by a fine of not less than one hundred nor more
than five hundred dollars or imprisonment for not more than one year or
both, except that where any person has previously been convicted of a
failure to make provisions for payment of disability or family leave
benefits within the preceding five years, upon conviction for a second
violation such person shall be fined not less than two hundred fifty nor
more than one thousand two hundred fifty dollars in addition to any
other penalties including fines otherwise provided by law, and upon
conviction for a third or subsequent violation such person may be fined
up to two thousand five hundred dollars in addition to any other
penalties including fines otherwise provided by law. Where the employer
is a corporation, the president, secretary, treasurer, or officers
exercising corresponding functions, shall each be liable under this
section.
2. The chair or any officer of the board designated by him or her,
upon finding that an employer has failed to make provision for the
payment of disability or family leave benefits, shall impose upon such
employer a penalty not in excess of a sum equal to one-half of one per
centum of his or her weekly payroll for the period of such failure and a
further sum not in excess of five hundred dollars, which sums shall be
paid into the fund created under section two hundred fourteen of this
article.
3. If for the purpose of obtaining any benefit or payment under the
provisions of this article, or for the purpose of influencing any
determination regarding any benefit payment, either for himself or
herself or any other person, any person, employee, employer or carrier
wilfully makes a false statement or representation or fails to disclose
a material fact, he or she shall be guilty of a misdemeanor.
4. Whenever a carrier shall fail to make prompt payment of disability
or family leave benefits payable under this article and after hearing
before an officer designated by the chair or a determination by the
chair's designee, pursuant to section two hundred twenty-one of this
article, for that purpose, the chair or designee shall determine that
failure to make such prompt payment was without just cause, the chair or
designee, pursuant to section two hundred twenty-one of this article,
shall collect from the carrier a sum not in excess of twenty-five per
centum of the amount of the benefits as to which the carrier failed to
make payment, which sum shall be credited to the special fund for
disability benefits. In addition, the chair or designee, pursuant to
section two hundred twenty-one of this article, may collect and pay over
to the employee the sum of ten dollars in respect to each week, or
fraction thereof, for which benefits have not been promptly paid.
* 5. In addition to other penalties herein provided, the chair or
designee shall remove from the list of physicians authorized to render
medical care under the provisions of articles one to eight, inclusive,
of this chapter and from the list of podiatrists authorized to render
podiatric care under section thirteen-k of this chapter, and from the
list of chiropractors authorized to render chiropractic care under
section thirteen-l of this chapter the name of any physician or
podiatrist or chiropractor whom the chair or designee, pursuant to
section two hundred twenty-one of this article, shall find, after
reasonable investigation, has submitted to the employer or carrier or
chair in connection with any claim for disability benefits under this
article, a statement of disability that is not truthful and complete.
* NB Effective until January 1, 2028
* 5. In addition to other penalties herein provided, the chair or
designee shall place on the exclusion list pursuant to section
thirteen-d of this chapter the name of any physician or podiatrist or
chiropractor whom the chair or designee, pursuant to section two hundred
twenty-one of this article, shall find, after reasonable investigation,
has submitted to the employer or carrier or chair in connection with any
claim for disability benefits under this article, a statement of
disability that is not truthful and complete.
* NB Effective January 1, 2028
6. In addition to other penalties herein provided, any person who for
the purpose of obtaining any benefit or payment under this article or
for the purpose of influencing any determination regarding any benefit
payment, knowingly makes a false statement with regard to a material
fact, shall not be entitled to receive benefits with respect to the
disability claimed or any disability benefits during the period of
twelve calendar months thereafter; but this penalty shall not be applied
more than once with respect to each such offense.
7. All fines imposed under subdivisions one and three of this section,
except as herein otherwise provided, shall be paid directly and
immediately by the officer collecting the same to the chair, and be paid
into the state treasury, provided, however, that all such fines
collected by justices of the peace of towns and police justices of
villages shall be paid to the state comptroller in accordance with the
provisions of section twenty-seven of the town law.
8. (a) The head of a state or municipal department, board, commission
or office authorized or required by law to issue any permit for or in
connection with any work involving the employment of employees in
employment as defined in this article, and notwithstanding any general
or special statute requiring or authorizing the issue of such permits,
shall not issue such permit unless proof duly subscribed by an insurance
carrier is produced in a form satisfactory to the chair, that the
payment of disability benefits and after January first, two thousand
twenty-one, the payment of family leave benefits for all employees has
been secured as provided by this article. Nothing herein, however, shall
be construed as creating any liability on the part of such state or
municipal department, board, commission or office to pay any disability
benefits to any such employee if so employed.
(b) The head of a state or municipal department, board, commission or
office authorized or required by law to enter into any contract for or
in connection with any work involving the employment of employees in
employment as defined in this article, and notwithstanding any general
or special statute requiring or authorizing any such contract, shall not
enter into any such contract unless proof duly subscribed by an
insurance carrier is produced in a form satisfactory to the chair, that
the payment of disability benefits and after January first, two thousand
eighteen, the payment of family leave benefits for all employees has
been secured as provided by this article.
Determination of contested claims for disability and family
leave benefits. In accordance with regulations adopted by the chair,
within twenty-six weeks of written notice of rejection of claim, the
employee may file with the chair a notice that his or her claim for
disability or family leave benefits has not been paid, and the employee
shall submit proof of disability or entitlement to family leave and of
his or her employment, wages and other facts reasonably necessary for
determination of the employee's right to such benefits. Failure to file
such notice within the time provided, may be excused if it can be shown
not to have been reasonably possible to furnish such notice and that
such notice was furnished as soon as possible. On demand the employer or
carrier shall forthwith deliver to the board the original or a true copy
of the health care provider's report, wage and employment data and all
other documentation in the possession of the employer or carrier with
respect to such claim.
The chair or designee, shall have full power and authority to
determine all issues in relation to every such claim for disability
benefits required or provided under this article, and shall file its
decision in the office of the chairman. Upon such filing, the chairman
shall send to the parties a copy of the decision. Either party may
present evidence and be represented by counsel at any hearing on such
claim. The decision of the board shall be final as to all questions of
fact and, except as provided in section twenty-three of this chapter, as
to all questions of law. Every decision shall be complied with in
accordance with its terms within ten days thereafter except as permitted
by law upon the filing of a request for review, and any payments due
under such decision shall draw simple interest from thirty days after
the making thereof at the rate provided in section five thousand four of
the civil practice law and rules. The chair shall adopt rules and
regulations to carry out the provisions of this article including but
not limited to resolution of contested claims and requests for review
thereof, and payment of costs for resolution of disputed claims by
carriers. Any designated process shall afford the parties the
opportunity to present evidence and to be represented by counsel in any
such proceeding. The chair shall have the authority to provide for
alternative dispute resolution procedures for claims arising under
family leave, including but not limited to referral and submission of
disputed claims to a neutral arbitrator under the auspices of an
alternative dispute resolution association pursuant to article
seventy-five of the civil practice law and rules. Neutral arbitrator
shall mean an arbitrator who does not have a material interest in the
outcome of the arbitration proceeding or an existing and substantial
relationship, including but not limited to pecuniary interests, with a
party, counsel or representative of a party. Any determination made by
alternative dispute resolution shall not be reviewable by the board and
the venue for any appeal shall be to a court of competent jurisdiction.
Technical rules of evidence or procedure not required. The
chair, the board or the chair's designee, pursuant to section two
hundred twenty-one of this article, in making an investigation or
inquiry or conducting a hearing shall not be bound by common law or
statutory rules of evidence or by technical or formal rules of
procedure, except as provided by this chapter; but may make such
investigation or inquiry or conduct such hearing in such manner as to
ascertain the substantial rights of the parties.
Modification of board decisions or orders. Upon its own motion
or upon the application of any party in interest, the board may at any
time review any decision or order regarding disability benefits and, on
such review, may make a decision ending, diminishing or increasing the
disability benefits previously ordered, and shall state the reason
therefor. Upon the filing of such decision regarding disability
benefits, the chair shall send to each of the parties a copy thereof. No
such review shall affect any previous decision as regards any moneys
regarding disability benefits already paid, except that a decision
increasing the disability benefit rate may be made effective from date
of commencement of disability, and except that, if any part of the
disability benefits due is unpaid, a decision decreasing the disability
benefit rate may be made effective from the commencement of disability,
and any payments made prior thereto in excess of such decreased rate
shall be deducted from future disability benefits in such manner and by
such method as may be determined by the board.
Appeals. All the provisions of section twenty-three of this
chapter with respect to decisions of the board and appeals from such
decisions shall be applicable to decisions of the board regarding
disability benefits and to appeals from such decisions regarding
disability benefits as fully in all respects as if the provisions of
section twenty-three of this chapter were fully set forth in this
article except that reimbursement for disability benefits, if required,
following modification or rescission upon appeal shall be paid from
administrative expenses as provided in section two hundred twenty-eight
of this article.
Fees for representing employees. Claims of attorneys and
counsellors-at-law for services in connection with any contested claim
arising under this article shall not be enforceable unless approved by
the board. If so approved, such fee or fees shall become a lien upon the
benefits ordered, but shall be paid therefrom only in the manner fixed
by the board or the alternative dispute resolution association. Any
other person, firm, corporation, organization, or other association who
shall exact or receive any fee or gratuity for any services rendered on
behalf of an employee except in an amount so determined shall be guilty
of a misdemeanor. Any person, firm, corporation, organization, or
association who shall solicit the business of an employee claiming
benefits under this article, or who shall make it a business to solicit
employment for a lawyer in connection with any claim for disability or
family leave benefits under this article, or who shall exact or receive
any fee or gratuity or other charge with respect to the collection of
any uncontested claim for disability or family leave benefits, shall be
guilty of a misdemeanor.
The insurance contract. 1. Every policy of insurance providing
the benefits required to be paid under this article shall contain a
provision setting forth the right of the chairman to enforce in the name
of the people of the state of New York for the benefit of the person
entitled to the benefits insured by the policy, either by filing a
separate application or by making the insurance carrier a party to the
original application, the liability of the insurance carrier in whole or
in part for the payment of such benefits; provided, however, that
payment in whole or in part of such benefits by either the employer or
the insurance carrier shall to the extent thereof be a bar to the
recovery against the other of the amount so paid.
2. Every such policy shall contain a provision that, as between the
employee and the insurance carrier, the notice to or knowledge of the
occurrence of the injury or sickness on the part of the employer shall
be deemed notice or knowledge as the case may be, on the part of the
insurance carrier; that jurisdiction of the employer shall, for the
purpose of this chapter, be jurisdiction of the insurance carrier and
that the insurance carrier shall in all things be bound by and subject
to the orders, findings or decisions rendered in connection with the
payment of benefits under the provisions of this article.
3. Every such policy shall contain a provision to the effect that the
insolvency or bankruptcy of the employer shall not relieve the insurance
carrier from the payment of benefits for disability suffered by an
employee during the life of such policy.
4. Every policy of insurance issued to meet the requirements of
section two hundred eleven shall contain a provision reciting in effect
that notwithstanding any other provision of the policy, benefits shall
be paid at least to the extent and in the manner and subject to the
conditions required by the terms of the insured's provision of benefits
under this article.
5. No contract of insurance issued by an insurance carrier providing
the benefits to be paid under this article shall be cancelled within the
time limited in such contract for its expiration unless notice is given
as required by this section. When cancellation is due to non-payment of
premiums such cancellation shall not be effective until at least ten
days after a notice of cancellation of such contract, on a date
specified in such notice, shall be filed in the office of the chair and
also served on the employer. When cancellation is due to any reason
other than non-payment of premiums such cancellation shall not be
effective until at least thirty days after a notice of cancellation of
such contract, on a date specified in such notice, shall be filed in the
office of the chair and also served on the employer; provided, however,
in either case that if insurance with another insurance carrier has been
obtained which becomes effective prior to the expiration of the time
stated in such notice, the cancellation shall be effective as of the
date of such other coverage. Such notice shall be served on the employer
as prescribed by the chair, including delivering it to him or her by
electronic means; provided that, if the employer be a partnership, then
such notice may be given to any one of the partners, and if the employer
be a corporation then the notice may be given to any agent or officer of
the corporation upon whom legal process may be served, provided,
however, the right to cancellation of a policy of insurance in the state
fund shall be exercised only for nonpayment of premiums or as provided
in section ninety-four of this chapter.
6. (a) Any insurance carrier or the state insurance fund who issues,
reinstates, amends or endorses any contract of insurance or rider
thereto providing the benefits required to be paid under this article
shall file notification in the office of the chair within thirty days
after such issuance, reinstatement, amendment or endorsement of the
contract. Such notice shall be filed in the manner and form prescribed
by the chair.
(b) In the event notice required under this subdivision or subdivision
five of this section is not filed with the chair within the thirty-day
time period, the chair may impose a penalty of up to one hundred dollars
for each ten-day period the insurance carrier or state insurance fund
failed to file the notification. All penalties collected pursuant to
this subdivision shall be deposited in the uninsured employers' fund.
7. The chair may require by regulation that every policy of family
leave insurance contain a provision requiring that all disputes be
resolved by designated alternative dispute resolution process in
accordance with such regulations.
8. Premiums for policies providing disability or family leave benefits
in accordance with this article shall be calculated in accordance with
applicable provisions of the insurance law, including subsection (n) of
section four thousand two hundred thirty-five of such law.
9. Except as set forth in subdivision eight of section two hundred
eleven of this article, every policy of insurance issued pursuant to
this article must offer coverage for both disability and family leave
benefits.
Actionable injuries in claims for disability benefits;
subrogation. 1. If an employee entitled to disability benefits under
this article be disabled by injury caused by the negligence or wrong of
a third party, such employee need not elect whether to take such
disability benefits or to pursue his remedy against such third party,
but may take his benefits under this article. The carrier liable for
payment of disability benefits under this article or the chairman in
case of benefits paid under section two hundred seven or two hundred
thirteen shall have a lien on the proceeds of any recovery from such
third party, whether by judgment, settlement or otherwise, after the
deduction of reasonable and necessary expenditures, including attorneys'
fees, incurred in effecting such recovery, to the extent of the total
amount of disability benefits provided by this article and paid, and to
such extent such recovery shall be deemed for the benefit of such
carrier or the chairman. Should the employee secure a recovery from such
third party, whether by judgment, settlement or otherwise, such employee
may apply on notice to such lienor to the court in which the third party
action was instituted, or to a court of competent jurisdiction if no
action was instituted, for an order apportioning the reasonable and
necessary expenditures, including attorneys' fees, incurred in effecting
such recovery. Such expenditures shall be equitably apportioned by the
court between the employee and the lienor. Notice of the commencement of
such action shall be given within ninety days thereafter to the employer
or carrier or to the chairman, as the case may be. The foregoing rights,
limitations, and procedures shall also apply to actions and recoveries
under the employers' liability act, and section six hundred
eighty-eight, title forty-six, United States code, and under the
maritime doctrine of wages, maintenance and cure. Any of the foregoing
providers of disability benefits which has recovered a lien pursuant to
the provisions hereof against the recovery of a person injured on or
after December first, nineteen hundred seventy-seven and before July
first, nineteen hundred seventy-eight, through the use or operation of a
motor vehicle in this state, shall notify such person by certified mail,
in a manner to be approved by the chairman and the superintendent of
financial services, of the responsibilities of an "insurer" (as defined
in subsection (g) of section five thousand one hundred two of the
insurance law), to reimburse such person under such circumstances to the
extent that the recovered lien represents first party benefits as
defined in article fifty-one of the insurance law.
1-a. Notwithstanding any other provisions of this article the carrier
liable for payment of disability benefits under this article, or the
chairman in case benefits are paid under section two hundred seven or
section two hundred thirteen of this chapter shall not have a lien on
the proceeds of any recovery received pursuant to subsection (a) of
section five thousand one hundred four of the insurance law, whether by
judgment, settlement or otherwise for disability benefits paid, which
were in lieu of first party benefits which another insurer would have
otherwise been obligated to pay under article fifty-one of the insurance
law. The sole remedy of any of the foregoing providers to recover the
payments in the situation specified in the preceding sentence shall be
pursuant to the settlement procedures contained in section five thousand
one hundred five of the insurance law.
2. If such disabled employee has been paid disability benefits under
this article but has failed to commence action against such other within
six months prior to the expiration of the statute of limitations, the
carrier or the chairman, as the case may be, may maintain an action
against such third party. If the carrier or the chairman, as the case
may be, having paid disability benefits to a disabled employee, who is
also a "covered person" (as defined in subsection (j) of section five
thousand one hundred two of the insurance law), and who was injured in a
motor vehicle accident in this state on and after December first,
nineteen hundred seventy-seven and before July first, nineteen hundred
seventy-eight, maintains an action against such third party, who is also
a "covered person", and recovers, whether by judgment, settlement or
otherwise, it shall advise the disabled employee, by certified mail, in
a manner to be approved by the chairman and the superintendent of
financial services, of the responsibility of an "insurer" (as defined in
subsection (g) of section five thousand one hundred two of the insurance
law) to further compensate such disabled employee.
2-a. Notwithstanding any other provisions of this article, the failure
of a "covered person" (as defined in subsection (j) of section five
thousand one hundred two of the insurance law), who has been paid
disability benefits under this article for injuries arising out of the
use or operation of a motor vehicle in this state, to commence an action
against such other within six months prior to the expiration of the
statute of limitations, shall not operate to permit the carrier or the
chairman to institute an action against such other third party for
recovery of disability benefits paid which were in lieu of first party
benefits which an insurer would have otherwise been obligated to pay
under article fifty-one of the insurance law unless such third party is
not a "covered person". The sole remedy of any of the foregoing
providers to recover the payments in the situation specified in the
preceding sentence when the other party is a "covered person" shall be
pursuant to the settlement procedures contained in section five thousand
one hundred five of the insurance law.
3. A compromise of any such cause of action by the employee in an
amount less than the benefits provided by this article shall be made
only with the written consent of the carrier or the chairman, as the
case may be.
Administrative expenses. 1. The estimated annual expenses
necessary for the workers' compensation board to administer the
provisions of the disability benefits law shall be borne by all affected
employers and included as part of the assessment rate generated pursuant
to subdivision two of section one hundred fifty-one of this chapter.
2. Annually, as soon as practicable after the first day of April, the
chair and department of audit and control shall ascertain the total
amount of actual expenses.
Posting of notice and providing of notice of rights. 1. Each
covered employer shall post and maintain in a conspicuous place or
places in and about the employer's place or places of business
typewritten or printed notices in form prescribed by the chair, stating
that the employer has provided for the payment of disability and family
leave benefits as required by this article. The chair may require any
covered employer to furnish a written statement at any time showing the
carrier insuring the payment of benefits under this article or the
manner in which such employer has complied with section two hundred
eleven of this article or any other provision of this article. Failure
for a period of ten days to furnish such written statement shall
constitute presumptive evidence that such employer has neglected or
failed in respect of any of the matters so required.
2. Whenever an employee of a covered employer who is eligible for
benefits under section two hundred four of this article shall be absent
from work due to a disability or to provide family leave as defined in
subdivision nine and subdivision fifteen respectively, of section two
hundred one of this article for more than seven consecutive days, the
employer shall provide the employee with a written statement of the
employee's rights under this article in a form prescribed by the chair.
The statement shall be provided to the employee within five business
days after the employee's seventh consecutive day of absence due to
disability or family leave or within five business days after the
employer has received notice that the employee's absence is due to
disability or family leave, whichever is later.
Destruction of records. All records and documents relative to
this article required to be filed with the chairman or board may be
destroyed, in accordance with the state finance law.
Subpoenas. A subpoena or a subpoena duces tecum may be signed
and issued by the chairman, a member of the board, referee or such
officer as may be designated by the chairman. A subpoena or a subpoena
duces tecum may also be signed and issued by any attorney and
counsellor-at-law appearing before the board on behalf of an employee or
other party. A subpoena issued under this section shall be regulated by
the civil practice law and rules.
* § 232. Fees for testimony of physicians, podiatrists, chiropractors,
dentists, psychologists and health care providers. Whenever his or her
attendance at a hearing, deposition or arbitration before the board or
the chair's designee, pursuant to section two hundred twenty-one of this
article, is required, the attending physician or attending podiatrist or
attending chiropractor or attending dentist or attending psychologist or
attending certified nurse midwife of the disabled employee, except such
physicians as are disqualified from testifying pursuant to subdivision
one of section thirteen-b, or section nineteen-a of this chapter, and
except such podiatrists as are disqualified from testifying under the
provisions of section thirteen-k, and except such chiropractors as are
disqualified from testifying under the provisions of section thirteen-l,
and except such psychologists as are disqualified from testifying under
the provisions of section thirteen-m, or health care provider shall be
entitled to receive a fee in accordance with regulations of the chair.
* NB Effective until January 1, 2028
* § 232. Fees for testimony of physicians, podiatrists, chiropractors,
dentists, psychologists and health care providers. Whenever their
attendance at a hearing, deposition or arbitration before the board or
the chair's designee, pursuant to section two hundred twenty-one of this
article, is required, the attending physician or attending podiatrist or
attending chiropractor or attending dentist or attending psychologist or
attending certified nurse midwife of the disabled employee, or health
care provider shall be entitled to receive a fee in accordance with
regulations of the chair.
* NB Effective January 1, 2028
Inspection of records of employers. All books, records and
payrolls of employers shall be open for inspection by the chairman or by
any officer or employee of the board designated by him for the purpose
of ascertaining the amount of wages and the number of employees and such
other information as may be necessary in the administration of this
article. Any person who refuses to allow the chairman or his authorized
representative to inspect any such books, records or payrolls relative
to the enforcement of this article shall be guilty of a misdemeanor.
Disclosures prohibited. Information as required by any carrier,
or its officers or employees, from employers or employees or others
pursuant to this article shall not be opened to public inspection or
used for any purpose other than the determination of claims under and
complying with the provisions of this article; and any carrier, or
officer or employee of a carrier who, except with the authority of the
chairman or pursuant to his regulations, or as otherwise provided by
law, shall disclose the same shall be guilty of a misdemeanor.
Exemptions. Any employee who is receiving or is entitled to
receive old-age insurance benefits under title two of the social
security act, shall be exempt from this article upon filing with the
chairman and his employer a statement, in such form as the chairman
shall prescribe, waiving any and all benefits under this article.
Thereafter such employee shall be exempt from any liability to
contribute toward the cost of such benefits, and his employer shall be
relieved of responsibility to provide for the payment of any benefits to
such employee under this article.
Disposition of accrued benefits upon death. If any benefits due
under this article to an employee are unpaid at the time of his death,
such benefits shall be payable to the estate of the individual or, at
the option of the carrier, may be paid to the surviving spouse, parent,
child or children of the deceased employee. Benefits that are not paid
as above provided shall, after the expiration of one year after such
death, be paid into the special fund for disability benefits created
under section two hundred fourteen of this article.
Reimbursement for advance payments by employers. If an employer
has made advance payments of benefits or has made payments to an
employee in like manner as wages during any period of disability or
family leave for which such employee is entitled to the benefits
provided by this article, he or she shall be entitled to be reimbursed
by the carrier out of any benefits due or to become due for the existing
disability or family leave, if the claim for reimbursement is filed with
the carrier prior to payment of the benefits by the carrier.
Payments to minors. Minors shall be deemed to be sui juris for
the purpose of receiving payment of benefits under this article.
Representation before the board. Any person, firm, or
corporation licensed by the board under section twenty-four-a of this
article or subdivision three-b of section fifty of this chapter shall be
deemed to be authorized to appear in behalf of claimants or self insured
employers, as the case may be, in contested disability or family leave
claims under this article.
Non-liability of state. The special fund for disability
benefits created by section two hundred fourteen shall be the sole and
exclusive source for the payment of benefits provided by sections two
hundred seven and two hundred thirteen. The state of New York undertakes
the administration of the fund without any liability on the part of the
state beyond the amount of moneys actually collected and credited to the
fund.
Application of other provisions of chapter. All the powers and
duties conferred or imposed upon the chairman and board by this chapter
that are necessary for the administration of this article and not
inconsistent are, to that extent, hereby made applicable to this
article; and none of the other provisions of this chapter pertaining to
benefits provided by other articles of this chapter shall be construed
to be applicable to this article. The provisions of section one hundred
twenty of this chapter shall be applicable as fully as if set forth in
this article, except that penalties paid into the state treasury
pursuant thereto under this article shall be applied toward the expenses
of administering this article.
Separability of provisions; federal law; regulations. 1. If any
provision of this article or the application thereof to any person or
circumstances is held invalid, the remainder of this article and the
application of such provision to other persons or circumstances shall
not be affected thereby.
2. Nothing in this article shall be interpreted or applied so as to
create a conflict with federal law.
3. The chair shall have authority to adopt regulations to effectuate
any of the provisions of this article.
ARTICLE 10 Workmen's Compensation Act For Civil Defense Volunteers
Short title. This article shall be known and may be cited as
the "workers' compensation act for civil defense volunteers."
Declaration of policy and legislative intent. The president of
the United States on December sixteenth, nineteen hundred fifty,
proclaimed a state of national emergency. The governor of this state, in
a special message to the legislature on January eighth, nineteen hundred
fifty-one, recommended a program for the defense of the people of our
state and the safeguarding of property against attack. In order to make
effective necessary measures of civil defense, many of our citizens will
voluntarily undertake to perform civil defense duties and may, in the
event of attack, be exposed to injury in the performance of authorized
civil defense duties they voluntarily assumed as a patriotic service for
the common good.
Those who volunteer to perform civil defense duties deserve some
protection for themselves and their families in the event that
disability or death should be incurred while they are performing these
duties. No such benefits have yet been provided by the federal
government. Accordingly it is hereby declared to be the intent of the
legislature that special workmen's compensation benefits, as provided in
this article, should be made available for civil defense volunteers in
this state.
Definitions. Except as otherwise provided in this article,
terms used in this article shall have the meaning given to such terms in
articles one to eight, inclusive, of this chapter and in the state
defense emergency act.
1. "Civil defense volunteers" shall include those members of the civil
defense forces under the provisions of the state defense emergency act
who are volunteer persons serving without compensation in the personnel
of volunteer agencies.
2. "Authorized civil defense service" for the purposes of this article
includes duties and services performed by an air raid warden during
attack, actual or imminent, and subsequent to attack, but not during
training or practice periods; and duties and services performed by a
civil defense volunteer other than an air raid warden following actual
attack, but not during training or practice periods or during attack,
actual or imminent. For the purposes of this article, such services
shall be those authorized by the local director of civil defense in
accordance with regulations and orders of the commission or state
director of civil defense.
3. "Injury" within the meaning of this article means only accidental
injury arising in the course of authorized civil defense service during
attack, actual or imminent, or subsequent to attack, and disease or
infection that may be sustained or death incurred either as the natural
and unavoidable result thereof or of exposure to radiation or to noxious
gases or to germ warfare in the course of such authorized service.
4. "Commission" shall mean the state civil defense commission created
by article three of the state defense emergency act, and "state
director" shall mean the New York state director of civil defense
appointed under the provisions of said act.
5. "Board" shall mean the workers' compensation board.
6. "Chairman" shall mean the chairman of the workers' compensation
board.
Provision of workmen's compensation for civil defense
volunteers. A civil defense volunteer performing authorized civil
defense services shall be deemed to be in special employment of his
local office as defined in the state defense emergency act. Workmen's
compensation benefits are provided in this article for disability or
death proximately caused by injury in the course of such special
employment without regard to fault as a cause of injury. Such special
employment may be within the area under the jurisdiction of the local
director in which civil defense volunteers of said local office are
mobilized or outside such area where civil defense volunteers are
operating in accordance with plans approved by or orders issued by the
New York state civil defense commission.
Evidence of authorized services. For the purpose of
administering this article a certified copy of regulations and orders of
the commission or state director shall be evidence thereof when filed
with the chairman; but if not so filed the burden of proving an
authorized civil defense service or duty or activity shall be on the
claimant.
Compensation provided. The schedule of special compensation for
civil defense volunteers under this article is hereby established as
follows:
(1) Total disability. In case of total disability, sixty-six and
two-thirds per centum of average weekly wages computed under the
provisions of section fourteen shall be paid to the civil defense
volunteer during continuance of such disability, up to a maximum period
of disability of five years from the date of injury.
(2) Permanent partial disability. In case of disability partial in
character but permanent in quality, such percentage of sixty-six and
two-thirds per centum of average weekly wages computed under the
provisions of section fourteen as the percentage of impairment bears to
total disability, shall be paid to the civil defense volunteer during
continuance of such disability, up to a maximum period of disability of
five years from the date of injury.
(3) Medical care and chiropractic care. Necessary medical,
chiropractic and other attendance and treatment as set forth in section
thirteen shall be provided, subject to the provisions of sections
thirteen-a to thirteen-j inclusive and thirteen-l; but the aggregate
cost of all such attendance and treatment shall not exceed the sum of
four thousand dollars in a case of total disability or of permanent
partial disability or in a case of total disability with subsequent or
prior permanent partial disability, nor one thousand dollars in a case
of temporary partial disability without subsequent or prior total
disability.
(4) Death. Compensation shall be paid in the amount, and to and for
the benefit of persons, as follows:
(a) Actual funeral expenses in a reasonable sum not exceeding seven
hundred and fifty dollars to a person or persons and in manner as
provided in section sixteen subdivision one.
(b) If there be a surviving dependent wife or dependent husband and no
surviving child of the deceased under the age of eighteen years, to such
dependent wife or dependent husband forty per centum of the average
wages of the deceased as defined in section sixteen subdivision five
during widowhood or widowerhood; provided that the total amount payable
shall in no case exceed sixty-six and two-thirds per centum of such
wages or be paid for any period which, when combined with other benefits
provided under this article in the event of disability preceding death,
shall extend more than five years from the date of injury.
(c) If there be a surviving dependent wife or dependent husband and
also a surviving child or children of the deceased under the age of
eighteen years, to such dependent wife or dependent husband thirty per
centum of such average wages of the deceased during widowhood or
widowerhood, and the additional amount of twenty per centum of such
wages for each such child, but not after the child shall have attained
the age of eighteen years; provided that the total amount payable shall
in no case exceed sixty-six and two-thirds per centum of such wages or
be paid for any period which, when combined with other benefits provided
under this article in the event of disability preceding death, shall
extend more than five years from the date of injury.
(d) If there be a surviving child or children of the deceased under
the age of eighteen years, but no surviving dependent wife or dependent
husband, then for the support of each such child but not after such
child shall have attained the age of eighteen years, thirty per centum
of such average wages of the deceased; provided that the total amount
payable shall in no case exceed sixty-six and two-thirds per centum of
such wages or be paid for a period which, when combined with other
benefits provided under this article in the event of disability
preceding death, shall extend more than five years from the date of
injury.
(e) If there be no surviving dependent wife or dependent husband and
no surviving child or children under the age of eighteen, no payment
shall be made to the special funds established under the provisions of
section fifteen and twenty-five-a of this chapter nor to any person,
except only for funeral expenses as provided in subdivision four of this
section.
Compensation not allowed during first seven days. No
compensation shall be allowed for the first seven days of disability,
except medical benefits provided in section three hundred five
subdivision three; and during a period of time and within an area in
which a county or city is providing medical treatment for the injured
under section twenty-five of the state defense emergency act, medical
attendance or treatment under this article shall not be allowed.
Computation of benefits. Compensation of a civil defense
volunteer under this article shall be computed on the basis of his wages
during the year preceding injury, in case of disability under the
provisions of section fourteen subject to the limitations of section
fifteen subdivision six, and in case of death under the provisions of
section sixteen subdivision five; and "wages" shall be as defined in
section two subdivision nine.
Compensation of a civil defense volunteer who was self-employed at the
time of injury shall be computed, whether for disability or death, on
the basis of the wages of a similar worker determined under the
provisions of section fourteen unless the self-employed volunteer, or a
dependent in a death case, shall authorize the state commissioner of
taxation and finance to furnish to the chairman a copy of the income tax
return of the civil defense volunteer filed to report income of the year
next preceding the date of injury, in which event compensation under
this article shall be computed on the basis of an assumed wage which
shall be deemed to be the entire net income from self-employment minus
investment income as reported to the state department of taxation and
finance.
If earnings as so computed do not fairly represent normal earnings of
the civil defense volunteer, there may be a redetermination more
accurately to reflect earnings and the chairman may by rule prescribe
reasonable procedures for such redetermination.
If the compensation of a civil defense volunteer can not be computed
either on the basis of actual wages or wages of a similar worker, the
compensation of such civil defense volunteer shall be at the rate
provided in section fifteen subdivision six as the minimum rate for
disability or, in case of death, on the basis of assumed wages which
shall be deemed not to be less than the minimum provided in section
sixteen subdivision five.
Liability for compensation. Compensation provided in this
article, including cash benefits, medical and chiropractic care and
funeral expenses, shall be paid by the chairman promptly out of the
special fund created under this article and, except as to a disallowed
claim, without decision by the board.
Non-duplication. No compensation under the provisions of this
article shall be payable to any civil defense volunteer or to the
dependents of a deceased civil defense volunteer otherwise entitled to
receive workers' compensation under the provisions of this chapter or of
any other law, or volunteer firefighters' benefits or volunteer
ambulance workers' benefits under the provisions of the volunteer
firefighters' benefit law or the volunteer ambulance workers' benefit
law or of any other law, or if the disabled civil defense volunteer or
the dependents of a deceased civil defense volunteer are entitled to
receive benefits under the disability benefits law or similar statute of
any state or under any disability or retirement or insurance program of
an employer who has contributed to the cost thereof or under any
provision of benefits by or under laws of the federal government or a
state or political subdivision thereof, except only as herein provided.
Compensation payable under this article shall in such event, or any of
them, be reduced to an amount which, together with such other
compensation or benefits, shall not exceed in aggregate the amount of
compensation to which the claimant, or his dependents, would be entitled
under this article but for such other provision.
Disposition of accrued benefits upon death. If any benefits due
to a civil defense volunteer under this article are unpaid at the time
of his death, such benefits shall be payable to the estate of the
claimant or, at the option of the chairman, may be paid to the surviving
spouse, child or children of the deceased employee. Benefits that are
not paid as above provided shall lapse.
Payments to minors. Civil defense volunteers who are minors
shall be deemed to be sui juris for the purpose of receiving payment of
compensation under this article. Work as a civil defense volunteer shall
not be deemed an employment in violation of any of the provisions of the
labor law for purposes of section fourteen-a.
Exclusiveness of remedy. Compensation as provided in this
article shall be the exclusive remedy of a civil defense volunteer or
his or her spouse, dependents, executor or administrator, for injury,
disease or death arising in the course of civil defense volunteer
service, as against the state or any political subdivision of the state
or civil defense agency or any person or other agency acting under
governmental authoritiy in furtherance of civil defense activities, with
or without negligence, except only as otherwise provided by law. A
member of a civil defense agency of the federal government or of another
state or of the Dominion of Canada or a province thereof, who may
perform services within this state, whether pursuant to a mutual aid
compact or otherwise, shall not be entitled to compensation under the
provisions of this article.
Compensation inalienable. Compensation payable under this
article shall not be assigned or released and shall be exempt from all
claims of creditors and from levy, execution and attachment or other
remedy for recovery or collection of a debt, which exemption may not be
waived.
Claim filing. The right to compensation including medical care
and funeral expenses under the provisions of this article shall be
barred unless written claim is filed with the chairman within ninety
days after injury or, if death results therefrom, within ninety days
after death; except that if death shall occur more than one year after
the injury, the right shall be barred unless prior written claim based
on the injury has been timely filed. If disability or death is caused by
a disease that is included among the diseases enumerated in section
forty, then the claim may be filed within the time and in the manner
provided in section forty.
Failure to file written claim as required may be excused by the
chairman on the ground that, for good and sufficient reason, claim could
not be filed on time.
Claims procedures. Claims shall be subject to the
administrative procedures prescribed for claims filed with the chairman
for disability benefits payable under section two hundred seven.
The chairman may require a claimant under this article to file the
same proofs required under other articles of this chapter or other
proofs for determination of rights under this article, and may require
the employer or any former employer of the claimant and the local
director to file reports and to furnish such information as may be
reasonably necessary for such determination. If any such report or
information is not filed or furnished, the chairman may make
determination on the basis of available information, including the
claimant's statement.
Record of enrollment. Each local director of civil defense
shall maintain a record of enrollment of civil defense volunteers who
are personnel of the volunteer agencies sponsored by his local office.
Each record shall contain the name and address of the volunteer, the
name of his employer, date of enrollment and authorized classification
or assignment to duty, including the times of his assigned duty, as well
as changes in or termination of enrollment. Such record shall be
maintained in duplicate and the duplicate records shall be filed in
separate places for greater security in the event of attack.
Records of enrollment shall be open for inspection during usual
business hours by the chairman or by an officer or employee of the board
designated by the chairman. The local director shall furnish to the
chairman on request such information in the record of enrollment as is
required for administration of this article.
In the event of attack, actual or imminent, for which volunteers in
any part of the area under the jurisdiction of a local director are
mobilized, the local director shall forthwith deliver to the chairman
one of such duplicate records of enrollment.
If the civil defense volunteers enrolled by a local office shall, in
accordance with a mutual aid agreement approved by the New York state
civil defense commission, respond to a request for assistance from any
place, either within or without the state, which has suffered attack,
and shall perform therein authorized civil defense duties, the local
director shall forthwith deliver to the chairman one of such duplicate
records of enrollment.
The information contained in such record of enrollment delivered to
the chairman shall be prima facie evidence of information on which the
chairman may rely in paying claims of civil defense volunteers or their
dependents under this article; and if such record is not delivered to
the chairman as required by this section, the burden of proving his
right to compensation under this article in the case of civil defense
volunteers of the local office shall rest on the claimant.
Determination of contested claims for compensation. A civil
defense volunteer may file with the board a notice that his claim for
compensation under this article has not been paid, and the board shall
have full power and authority to determine all issues in relation to
every such claim and shall file its decision in the office of the
chairman. The decision of the board shall be final as to all questions
of fact and, except as provided in section twenty-three, as to all
questions of law.
Rules of evidence; modification of board decisions or orders;
appeals. The provisions of section two hundred twenty-two of this
chapter are made applicable to claims for compensation under this
article.
Special fund for civil defense volunteers. There is hereby
created a fund which shall be known as the special fund for civil
defense volunteers to provide for payment of cash benefits and medical
care and funeral expenses under this article and expenses of
administration under section three hundred twenty-five of this article.
Such fund shall consist of any moneys appropriated therefor or credited
thereto.
Commissioner of taxation and finance custodian of fund. The
commissioner of taxation and finance shall be the custodian of the
special fund for workmen's compensation for civil defense volunteers and
all disbursements for compensation therefrom shall be paid by him upon
drafts signed by the chairman or those authorized by the chairman for
that purpose. The commissioner of taxation and finance shall give a
separate and additional bond in an amount to be fixed by and with
sureties approved by the state comptroller conditioned for the faithful
performance of his duty as custodian of the fund. The commissioner of
taxation and finance may deposit any portion of the fund not needed for
immediate use, in the manner and subject to all the provisions of law
respecting the deposit of state funds by him. Interest earned by such
portion of the fund deposited by the commissioner of taxation and
finance shall be collected by him and placed to the credit of the fund.
Reinsurance. Funds credited to the special fund for the
purposes of this article may be used to effect insurance or reinsurance
with the war damage corporation or with any other authority or
instrumentality, public or private, or otherwise to distribute the
liability for compensation payable to civil defense volunteers.
Rehabilitation. Fees for rehabilitation services to disabled
civil defense volunteers shall be paid out of the special fund in an
amount approved by the chairman, and shall be the reasonable and
necessary cost of such services, including services of a physician or
rehabilitation facility specially qualified to render rehabilitation
services. Expenses of rehabilitation may include travel, board and room,
when necessary.
Limitation of liability. The special fund for civil defense
volunteers created by this article shall be the sole and exclusive
source for payment of compensation provided by this article for civil
defense volunteers.
Distribution of unexpended assets of the special fund. Within
five years after the period of emergency as defined in the state defense
emergency act shall have expired, the chairman shall determine the
amount of outstanding liabilities of the special fund and shall
establish reasonable reserves to pay to claimants cash benefits, medical
care and funeral expenses, and to meet the cost of administering unpaid
claims and the expenses of liquidating the fund in a sum allocated for
that purpose by the director of the budget, and the same shall become a
charge against the fund. Any balance in the fund after establishment of
such reserves shall be forthwith paid to the comptroller for the general
fund.
Administration expenses. The entire expense of administering
this article shall be paid out of the special fund and charged thereto.
At least thirty days prior to the first days of April and October in
each year, the chairman shall submit to the director of the budget for
his approval an estimated budget of expenditures for the succeeding six
months. In the event of attack within the state for which civil defense
volunteers are mobilized or outside the state if, in accordance with a
mutual aid agreement approved by the New York state civil defense
commission, civil defense volunteers of any local office respond to a
request for assistance, the chairman shall prepare and submit to the
director of the budget for his approval an estimated budget of
expenditures for funds to be allocated to the board during the period of
emergency. There may not be expended for purposes of such administration
more than the amounts specified in such budget for each item of
expenditure, except as authorized by the director of the budget. The
funds so allocated by the director of the budget shall be available to
the workmen's compensation board for services and expenses, including
travel outside the state, to carry out the provisions of this article
and shall be paid from the treasury on audit and warrant of the
comptroller on vouchers approved by the chairman, vice chairman or
secretary of the board. If there be officers or employees of the board
whose duties relate partly to the general work of the board and partly
to such administration, and in case there is other expense which is
incurred jointly on behalf of the general work of the board and to such
administration, an equitable apportionment of the expense shall be made
and the part thereof which is applicable to administration as provided
in this article shall be chargeable thereto.
Penalties. 1. If for the purpose of obtaining any benefit or
payment under the provisions of this article or for the purpose of
influencing any determination regarding any benefit payment, either for
himself or another, any person shall wilfully make a false statement or
representation or fail to disclose a material fact, he shall be guilty
of a misdemeanor.
2. In addition to other penalties provided in this chapter, any person
who for the purpose of obtaining any benefit or payment under this
article, or for the purpose of influencing any determination regarding
any benefit payment, knowingly makes a false statement with regard to a
material fact, shall not be entitled to receive any benefits, cash or
medical, for the disability claimed.
Application of other provisions of chapter. All the powers and
duties conferred or imposed upon the chairman and board by this chapter
that are necessary for the administration of this article and not
inconsistent therewith are, to that extent, hereby made applicable to
this article. The several rights, privileges and obligations set forth
in other articles of this chapter, and not inconsistent with the rights,
privileges and obligations provided herein, are deemed incorporated in
this article and are made a part hereof.
Separability of provisions. If any provisions of this act or
the application thereof to any person or circumstances is held invalid,
the remainder of this act and the application of such provision to other
persons or circumstances shall not be affected thereby.
ARTICLE 10-A Preferred Provider Organizations
Short title. This article may be known and shall be cited as
the "preferred provider organization act".
Preferred provider organizations; contracts. The state
insurance fund, any stock corporation, mutual corporation or reciprocal
insurer authorized to transact the business of workers' compensation
insurance in this state or self-insurer may contract with a preferred
provider organization to deliver all medical services mandated by this
chapter, provided such contract takes effect on or after January first,
nineteen hundred ninety-seven and the insurer or the employer has no
financial interest in the preferred provider organization. Where there
is a duty to collectively bargain, an employer shall collectively
bargain the use and implementation of a preferred provider organization
with the authorized collective bargaining agent of its employees.
Preferred provider organizations; defined. As used in this
article, the term "preferred provider organization" or "P.P.O." shall
mean a plan licensed pursuant to section three hundred fifty-three of
this article owned, operated or administered by an entity that provides
for the delivery of all services required by this chapter to all persons
covered by such plan.
Preferred provider organizations; licensing. To be licensed as
a preferred provider organization any entity, except any organization
which provides limited health care services, shall make an application
to the commissioner of health and shall submit therewith an application
fee of five hundred dollars. Such application shall be accompanied by
the information prescribed in regulation. Such information shall include
but not be limited to the following:
1. the standards by which the providers participating in the preferred
provider organization shall be selected;
2. the names and credentials of all individuals and organizations that
will provide service under the preferred provider organization, together
with appropriate evidence of compliance with all licensing or
certification requirements for such individuals or organizations to
practice in this state;
3. a description of any final disposition of professional misconduct
charges against any of the individuals or organizations which will
provide medical or other health care services under the preferred
provider organization program;
4. the names and professional qualifications of providers licensed by
the board in each medical specialty;
5. the names and certifications of hospitals from which employees may
choose in the event that hospitalization is necessary;
6. a description of the times, places and manner of providing services
under the preferred providers organization;
7. a detailed description of procedures to be followed by the
preferred providers organization for ongoing quality assurance,
utilization review and dispute resolution.
Each preferred provider organization formed pursuant to this article
shall comply with the provisions of sections forty-four hundred eight,
forty-four hundred eight-a, forty-four hundred six-c, forty-four hundred
six-d, subdivisions five and six of section forty-four hundred three and
article forty-nine of the public health law. The commissioner of
health, in consultation with the chair of the workers' compensation
board may waive or modify the application of these provisions to such
organizations where appropriate.
Preferred provider organizations; medical treatment. 1. Each
preferred provider organization shall provide at least two providers in
every medical specialty from which the employee may choose and at least
two hospitals from which the employee may choose in the event that
hospitalization is necessary. The commissioner of health may waive such
numerical requirements upon a finding that the geographical area in
which the preferred provider organization is located cannot meet the
requirements.
2. An employee may seek medical treatment from outside the preferred
provider organization thirty days after his or her first visit to a
preferred provider organization provider. In the event that such
employee seeks medical treatment outside the preferred provider
organization the employer may require a second opinion from a provider
within the preferred provider organization.
3. An employee may seek a second opinion with respect to such medical
treatment from another provider within the preferred provider
organization at any time.
Preferred provider organizations; medical fee schedules. The
medical fee schedules authorized pursuant to section thirteen of this
chapter shall not apply to any medical services provided by a preferred
provider organization pursuant to the provisions of this article.
ARTICLE 11 Laws Repealed; When to Take Effect
Laws repealed. Article fourteen-a and sections two hundred and
fifteen to two hundred and nineteen-g, both inclusive, of chapter
thirty-six of the laws of nineteen hundred and nine, as added by chapter
six hundred and seventy-four of the laws of nineteen hundred and ten,
are hereby repealed.
When to take effect. This chapter as amended shall take effect
July first, nineteen hundred and twenty-two.