Bill Text: NY A00337 | 2023-2024 | General Assembly | Introduced
Bill Title: Relates to providing access to the workers' compensation system, timely and meaningful wage replacement benefits, and medical treatment; relates to improving efficiency of the system and cost savings.
Spectrum: Partisan Bill (Democrat 6-0)
Status: (Introduced) 2024-01-03 - referred to labor [A00337 Detail]
Download: New_York-2023-A00337-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 337 2023-2024 Regular Sessions IN ASSEMBLY January 4, 2023 ___________ Introduced by M. of A. BRONSON, HEVESI, STECK, SIMON, JOYNER, LUNSFORD -- read once and referred to the Committee on Labor AN ACT to amend the workers' compensation law, in relation to providing access to the workers' compensation system, timely and meaningful wage replacement benefits, and medical treatment and to improve efficiency of the system and cost savings; and to repeal certain provisions of the workers' compensation law relating thereto The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. The opening paragraph of section 11 of the workers' compen- 2 sation law, as amended by section 8 of part SS of chapter 59 of the laws 3 of 2017, is amended to read as follows: 4 The liability of an employer prescribed by the last preceding section 5 shall be exclusive and in place of any other liability whatsoever, to 6 such employee, his or her personal representatives, spouse, parents, 7 dependents, distributees, or any person otherwise entitled to recover 8 damages, contribution or indemnity, at common law or otherwise, on 9 account of such injury or death or liability arising therefrom, except 10 [that if an] in the following events: (i) the employer's violation of an 11 applicable statute or regulation involving workplace safety was a proxi- 12 mate cause of the employee's injury or death; (ii) the employee's bene- 13 fits have been terminated pursuant to paragraph w of subdivision three 14 of section fifteen of this article; or (iii) the employer fails to 15 secure the payment of compensation for his or her injured employees and 16 their dependents as provided in section fifty of this article. In such 17 events, an injured employee, or his or her legal representative in case 18 of death results from the injury, may, at his or her option, elect to 19 claim compensation under this chapter, or to maintain an action in the 20 courts for damages on account of such injury[; and in such an action it21shall not be necessary to plead or prove freedom from contributory22negligence nor may the defendant plead as a defense that the injury wasEXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD01546-01-3A. 337 2 1caused by the negligence of a fellow servant nor that the employee2assumed the risk of his or her employment, nor that the injury was due3to the contributory negligence of the employee.] where an action is 4 brought pursuant to the employee's benefits being terminated pursuant to 5 paragraph w of subdivision three of section fifteen of this article, any 6 applicable statute of limitations shall be tolled from the date of inju- 7 ry until the date the employee's benefits are terminated. The employer 8 shall be entitled to take credit for compensation paid under this chap- 9 ter against any damages awarded in an action brought in the courts for 10 damages. The liability under this chapter of The New York Jockey Injury 11 Compensation Fund, Inc. created under section two hundred twenty-one of 12 the racing, pari-mutuel wagering and breeding law shall be limited to 13 the provision of workers' compensation coverage to jockeys, apprentice 14 jockeys, exercise persons, and at the election of the New York Jockey 15 Injury Compensation Fund, Inc., with the approval of the New York state 16 gaming commission, employees of licensed trainers or owners licensed 17 under article two or four of the racing, pari-mutuel wagering and breed- 18 ing law and any statutory penalties resulting from the failure to 19 provide such coverage. 20 § 2. Section 12 of the workers' compensation law is REPEALED. 21 § 3. Subdivisions (a), (b) and (g) of section 13 of the workers' 22 compensation law, subdivision (a) as amended by chapter 6 of the laws of 23 2007, the opening paragraph of subdivision (a) as amended by chapter 23 24 of the laws of 2016, subdivision (b) as amended by chapter 113 of the 25 laws of 1946 and subdivision (g) as separately amended by chapters 834 26 and 922 of the laws of 1990, are amended to read as follows: 27 (a) The employer shall promptly provide for an injured employee such 28 medical, dental, surgical, optometric or other attendance or treatment, 29 nurse and hospital service, medicine, optometric services, crutches, 30 eye-glasses, false teeth, artificial eyes, orthotics, prosthetic 31 devices, functional assistive and adaptive devices and apparatus for 32 such period as the nature of the injury or the process of recovery may 33 require. The employer shall be liable for the payment of the expenses of 34 medical, dental, surgical, optometric or other attendance or treatment, 35 nurse and hospital service, medicine, optometric services, crutches, 36 eye-glasses, false teeth, artificial eyes, orthotics, prosthetic 37 devices, functional assistive and adaptive devices and apparatus, as 38 well as artificial members of the body or other devices or appliances 39 necessary in the first instance to replace, support or relieve a portion 40 or part of the body resulting from and necessitated by the injury of an 41 employee, for such period as the nature of the injury or the process of 42 recovery may require, and the employer shall also be liable for replace- 43 ments or repairs of such artificial members of the body or such other 44 devices, eye-glasses, false teeth, artificial eyes, orthotics, prosthet- 45 ic devices, functional assistive and adaptive devices or appliances 46 necessitated by ordinary wear or loss or damage to a prosthesis, with or 47 without bodily injury to the employee. Damage to or loss of a prosthetic 48 device shall be deemed an injury except that no disability benefits 49 shall be payable with respect to such injury under section fifteen of 50 this article. Such a replacement or repair of artificial members of the 51 body or such other devices, eye-glasses, false teeth, artificial eyes, 52 orthotics, prosthetic devices, functional assistive and adaptive devices 53 or appliances or the providing of medical treatment and care as defined 54 herein shall not constitute the payment of compensation under section 55 twenty-five-a of this article. All fees and other charges for such 56 treatment and services shall be limited to such charges as prevail inA. 337 3 1 the same community for similar treatment of injured persons of a like 2 standard of living. 3 The chair shall [prepare and] establish a committee to determine the 4 schedule for the state, or schedules limited to defined localities, of 5 charges and fees for such medical treatment and care, and including all 6 medical, dental, surgical, optometric or other attendance or treatment, 7 nurse and hospital service, medicine, optometric services, crutches, 8 eye-glasses, false teeth, artificial eyes, orthotics, prosthetic 9 devices, functional assistive and adaptive devices and apparatus [in10accordance with and to be subject to change pursuant to rules promulgat-11ed by the chair. Before preparing such schedule for the state or sched-12ules for limited localities the chair shall request]. The members of the 13 committee shall be the president of the medical society of the state of 14 New York [and], the president of the New York state osteopathic medical 15 society [to submit to him or her a report on], the president of the New 16 York state society of orthopedists, the president of the New York state 17 AFL/CIO, the president of the business council of the state of New York, 18 an individual designated by the senate majority leader, an individual 19 designated by the speaker of the assembly, and the chair of the board. 20 The committee shall meet annually in order to determine the amount of 21 remuneration deemed [by such society] to be fair and adequate for the 22 types of medical care to be rendered under this chapter, but consider- 23 ation shall be given to the view of other interested parties. In the 24 case of physical therapy fees schedules the chair shall request the 25 president of a recognized professional association representing physical 26 therapists in the state of New York to submit to [him or her] the 27 committee a report on the amount of remuneration deemed by such associ- 28 ation to be fair and reasonable for the type of physical therapy 29 services rendered under this chapter, but consideration shall be given 30 to the views of other interested parties. The chair shall also prepare 31 and establish a schedule for the state, or schedules limited to defined 32 localities, of charges and fees for outpatient hospital services not 33 covered under the medical fee schedule previously referred to in this 34 subdivision, to be determined in accordance with and to be subject to 35 change pursuant to rules promulgated by the chair. Before preparing such 36 schedule for the state or schedules for limited localities the chair 37 shall request the president of the hospital association of New York 38 state to submit to [him or her] the committee a report on the amount of 39 remuneration deemed by such association to be fair and adequate for the 40 types of hospital outpatient care to be rendered under this chapter, but 41 consideration shall be given to the views of other interested parties. 42 In the case of occupational therapy fees schedules the chair shall 43 request the president of a recognized professional association repres- 44 enting occupational therapists in the state of New York to submit to 45 [him or her] the committee a report on the amount of remuneration deemed 46 by such association to be fair and reasonable for the type of occupa- 47 tional therapy services rendered under this chapter, but consideration 48 shall be given to the views of other interested parties. The amounts 49 payable by the employer for such treatment and services shall be the 50 fees and charges established by such schedule. Nothing in this sched- 51 ule, however, shall prevent voluntary payment of amounts higher or lower 52 than the fees and charges fixed therein, but no physician rendering 53 medical treatment or care, and no physical or occupational therapist 54 rendering their respective physical or occupational therapy services may 55 receive payment in any higher amount unless such increased amount has 56 been authorized by the employer, or by decision as provided in sectionA. 337 4 1 thirteen-g of this article. Nothing in this section shall be construed 2 as preventing the employment of a duly authorized physician on a salary 3 basis by an authorized compensation medical bureau or laboratory. 4 (b) In the case of persons, injured or residing and receiving medical 5 treatment outside of this state, but entitled to compensation or bene- 6 fits under this chapter, the provisions as to selection of authorized 7 physicians and the rules and regulations of the board governing medical 8 treatment within the state shall be inapplicable. In such cases the 9 employer shall promptly provide all necessary medical treatment and care 10 but if the employer fail to provide the same, after request by the 11 injured employee such injured employee may do so at the expense of the 12 employer. The employee shall not be entitled to recover any amount 13 expended by him for such treatment or services unless he shall have 14 requested the employer to furnish the same and the employer shall have 15 refused or neglected to do so, or unless the nature of the injury 16 required such treatment and services and the employer or his superinten- 17 dent or foreman having knowledge of such injury shall have neglected to 18 provide the same; nor shall any claim for medical or surgical treatment 19 be valid and enforceable, as against such employer, unless within twenty 20 days following the first treatment, the physician giving such treatment, 21 furnish to the employer and the chairman a report of such injury and 22 treatment, on a form prescribed by the chairman. The board may, however, 23 by the unanimous vote of a panel of not less than three members quali- 24 fied to act, excuse the failure to give such notice within twenty days 25 when it finds it to be in the interest of justice to do so, and may, 26 subject to the limitations contained in section twenty-eight of this 27 [chapter] article, make an award for the reasonable value of such 28 medical or surgical treatment. All fees and other charges for such 29 treatment and services, whether furnished by the employer or otherwise, 30 shall be subject to regulation by the board as provided in section twen- 31 ty-four of this [chapter] article, and shall be limited to such charges 32 as prevail in the same community for similar treatment of injured 33 persons of a like standard of living. 34 (g) Every hospital operating in the state shall, within twenty days of 35 receiving a written request by a claimant, claimant's representative, 36 employer, carrier or special fund created under this chapter, provide to 37 such claimant, claimant's representative, employer, carrier or special 38 fund for use in board proceedings the medical records of an employee who 39 has received treatment in such hospital and who is claiming benefits 40 under this chapter. Each hospital shall designate at least one officer 41 or employee who shall be responsible for provision of such records on 42 written request, and to whom the board, claimant, claimant's, employer, 43 carrier representative or special fund may address informal inquiries 44 regarding provision of such records. 45 No hospital shall be required to produce the records of any claimant 46 pursuant to this section without receiving the cost of copying such 47 records as determined by the chair. Such cost shall be paid by the 48 requesting party except that the employer or carrier or special fund 49 shall reimburse a claimant or claimant's representative the cost of an 50 initial set of such records where the request is made by a claimant or 51 claimant's representative. Should the hospital not be able to provide 52 the requested records within twenty days, they shall notify in writing 53 the party requesting the records of the reason why the records were not 54 provided and the date on which they will be provided. Such date shall be 55 within a reasonable period of time, but shall not exceed thirty days. 56 Failure to either provide the records within twenty days or to provide aA. 337 5 1 reason why the records have not been provided shall subject the hospital 2 to a fine of two hundred dollars which shall be imposed by the chair 3 payable to the board upon finding that this subdivision has not been 4 complied with. No hospital shall be required to produce the records of 5 any claimant without receiving its customary fees or charges for reprod- 6 uction of such records. The employer or carrier shall file with the 7 board any hospital or medical records concerning an injured worker that 8 come into its possession and have not been previously filed with the 9 board. 10 § 4. Paragraphs (d), (e) and the closing paragraph of subdivision 4 11 and subdivision 5 of section 13-a of the workers' compensation law, 12 paragraphs (d), (e) and the closing paragraph of subdivision 4 as 13 amended by chapter 473 of the laws of 2000 and subdivision 5 as amended 14 by section 8 of part CC of chapter 55 of the laws of 2019, are amended 15 to read as follows: 16 (d) The independent medical examiner on behalf of the employer or 17 carrier shall provide such reports and shall submit to investigation as 18 required by the chair. 19 (e) In order to qualify as admissible medical evidence, for purposes 20 of adjudicating any claim under this chapter, any report submitted to 21 the board by an independent medical examiner on behalf of the employer 22 or carrier licensed by the state of New York shall include the follow- 23 ing: 24 (i) a signed statement certifying that the report is a full and truth- 25 ful representation of the independent medical examiner's professional 26 opinion with respect to the claimant's condition[:]; 27 (ii) such examiner's board issued authorization number; 28 (iii) the name of the individual or entity requesting the examination; 29 (iv) if applicable, the registration number as required by section 30 thirteen-n of this article; and 31 (v) such other information as the chair may require by regulation. 32 Any report by an independent medical examiner on behalf of the employ- 33 er or carrier who is not authorized, and who performs an independent 34 medical examination in accordance with paragraph (c) of this subdivi- 35 sion, which is to be used as medical evidence under this chapter, shall 36 include in the report such information as the chair may require by regu- 37 lation. 38 (5) No claim for specialist consultations, surgical operations, 39 physiotherapeutic or occupational therapy procedures, x-ray examinations 40 or special diagnostic laboratory tests costing more than one thousand 41 dollars shall be valid and enforceable, as against such employer, unless 42 such special services shall have been authorized by the employer or by 43 the board, or unless such authorization has been unreasonably withheld, 44 or withheld for a period of more than thirty calendar days from receipt 45 of a request for authorization, or unless such special services are 46 required in an emergency, provided, however, that the basis for a denial 47 of such authorization by the employer must be based on a conflicting 48 second opinion rendered by a physician authorized by the board. The 49 board, with the approval of the superintendent of financial services, 50 shall issue and maintain a list of pre-authorized procedures under this 51 section, which shall not be used to deny medical treatment that varies 52 from such list or which occurs outside of the state. Such list of pre- 53 authorized procedures shall be issued and maintained for the purpose of 54 expediting authorization of treatment of injured workers. Such list of 55 pre-authorized procedures shall not prohibit varied treatment when theA. 337 6 1 treating provider demonstrates the appropriateness and medical necessity 2 of such treatment. 3 § 5. Subdivision 1 of section 13-f of the workers' compensation law, 4 as amended by chapter 353 of the laws of 1990, is amended to read as 5 follows: 6 (1) Fees for medical services shall be payable only to a physician or 7 other qualified person permitted by sections thirteen-b, thirteen-k, 8 thirteen-l and thirteen-m of this [chapter] article or other authorized 9 provider of health care under the education law or the public health law 10 permitted to render medical care or treatment under this chapter, or to 11 the agent, executor or administrator of the estate of such physician or 12 such other qualified person. Except as provided in section thirteen-d 13 of this [chapter] article, no provider of health care rendering medical 14 care or treatment to a compensation claimant, shall collect or receive a 15 fee from such claimant within this state, but shall have recourse for 16 payment of services rendered only to the employer under the provisions 17 of this chapter. Where an issue arises regarding a medical fee, a 18 provider of health care shall have the rights provided by sections twen- 19 ty and twenty-three of this article. Any compensation claimant who pays 20 a fee to a provider of health care for medical care or treatment under 21 this chapter shall have a cause of action against such provider of 22 health care for the recovery of the money paid, which cause of action 23 may be assigned to the chair in trust for the assigning claimant. All 24 such assignments shall run to the chair. The chair may sue the physi- 25 cian, or other authorized provider of health care as herein described on 26 the assigned cause of action with the benefits and subject to the 27 provisions of existing law applying to such actions by the claimant 28 himself or herself. Hospitals shall not be entitled to receive the 29 remuneration paid to physicians on their staff for medical and surgical 30 services. 31 § 6. Subdivisions 1, 2, paragraphs s, t, v and w of subdivision 3, 32 subdivisions 4, 4-a, 5 and paragraph (a) of subdivision 6 of section 15 33 of the workers' compensation law, subdivision 1 as amended by chapter 34 675 of the laws of 1977, subdivision 2 as amended by chapter 161 of the 35 laws of 1966, paragraph s of subdivision 3 as amended by chapter 204 of 36 the laws of 1988, paragraph t of subdivision 3 as amended by chapter 774 37 of the laws of 1945, subparagraphs 1 and 2 of paragraph t of subdivision 38 3 as amended by chapter 924 of the laws of 1990, paragraph v of subdivi- 39 sion 3 as amended by chapter 364 of the laws of 1989, paragraph w of 40 subdivision 3 as amended by section 1 of subpart A of part NNN of chap- 41 ter 59 of the laws of 2017, subdivision 4 as amended by chapter 168 of 42 the laws of 1979, subdivision 4-a as amended by chapter 712 of the laws 43 of 1941, subdivision 5 as amended by chapter 161 of the laws of 1966, 44 paragraph (a) of subdivision 6 as amended by section 7-a of part GG of 45 chapter 57 of the laws of 2013, are amended and a new subdivision 10 is 46 added to read as follows: 47 1. Permanent total disability. In case of total disability adjudged to 48 be permanent sixty-six and two-thirds per centum of the average weekly 49 wages shall be paid to the employee during the continuance of such total 50 disability. Loss of both hands, or both arms, or both feet, or both 51 legs, or both eyes, or of any two thereof, or inability to perform the 52 full range of sedentary work, or approval for federal social security 53 disability benefits as a result of the compensable accident or occupa- 54 tional disease shall, in the absence of conclusive proof to the contra- 55 ry, constitute permanent total disability. In all other cases permanent 56 total disability shall be determined in accordance with the facts.A. 337 7 1 Notwithstanding any other provision of this chapter, an injured employee 2 disabled due to the loss or total loss of use of both eyes, or both 3 hands, or both arms, or both feet, or both legs, or of any two thereof 4 shall not suffer any diminution of his compensation by engaging in busi- 5 ness or employment provided his earnings or wages, when combined with 6 his compensation, shall not be in excess of the wage base on which the 7 maximum weekly compensation benefit is computed under the law in effect 8 at time of such earning; further provided, that if the combination 9 exceeds such wage base, the compensation shall be diminished to an 10 amount which, together with his earnings or wages, shall equal the wage 11 base; and further provided that the application of this subdivision 12 shall not result in reduction of compensation which an injured employee 13 who is disabled due to the loss or total loss of use of both eyes, or 14 both hands, or both arms, or both feet, or both legs or of any two ther- 15 eof, would otherwise be entitled to under any other provision of this 16 section. 17 2. Temporary total disability. In case of temporary total disability, 18 which shall consist of the injured employee's inability to perform his 19 or her at-injury employment or any modified employment offered by the 20 employer that is consistent with the employee's disability, sixty-six 21 and two-thirds per centum of the average weekly wages shall be paid to 22 the employee during the continuance thereof, except as otherwise 23 provided in this chapter. 24 s. Partial loss or partial loss of use. Compensation for permanent 25 partial loss or loss of use of a member [may] shall be for proportionate 26 loss or loss of use of the member. Compensation for permanent partial 27 loss or loss of use of an eye shall be awarded on the basis of uncor- 28 rected loss of vision or corrected loss of vision resulting from an 29 injury whichever is the greater. 30 t. Disfigurement. 1. The board may award proper and equitable compen- 31 sation for serious facial or head disfigurement, not to exceed [twenty] 32 thirty thousand dollars, including a disfigurement continuous in length 33 which is partially in the facial area and also extends into the neck 34 region as described in [paragraph] subparagraph two [hereof] of this 35 paragraph. 36 2. The board, if in its opinion the earning capacity of an employee 37 has been or may in the future be impaired, may award compensation for 38 any serious disfigurement in the region above the sterno clavicular 39 articulations anterior to and including the region of the sterno cleido 40 mastoid muscles on either side, but no award under subdivisions one and 41 two of this section shall, in the aggregate, exceed [twenty] thirty 42 thousand dollars. 43 3. Notwithstanding any other provision hereof, two or more serious 44 disfigurements, not continuous in length, resulting from the same inju- 45 ry, if partially in the facial area and partially in the neck region as 46 described in [paragraph] subparagraph two [hereof] of this paragraph, 47 shall be deemed to be a facial disfigurement. 48 v. Additional compensation for impairment of wage earning capacity in 49 certain permanent partial disabilities. Notwithstanding any other 50 provision of this subdivision, additional compensation shall be payable 51 for impairment of wage earning capacity for any period after the termi- 52 nation of an award under paragraphs a, b, c, or d, of this subdivision 53 for the loss or loss of use of [fifty] forty per centum or more of a 54 member, provided such impairment of earning capacity shall be due solely 55 thereto. Such additional compensation shall be determined in accordance 56 with paragraph w of this subdivision, but shall not cease until the dateA. 337 8 1 the disabled employee receives or is entitled to receive old-age insur- 2 ance benefits under the social security act. The additional compensation 3 shall be reduced by fifty per centum of any amount of disability bene- 4 fits which the disabled employee is receiving or entitled to receive for 5 the same period under the social security act, [and shall cease on the6date the disabled employee receives or is entitled to receive old-age7insurance benefits under the social security act]. As soon as practica- 8 ble after the injury, the worker shall be required to participate in a 9 board approved rehabilitation program; or shall have demonstrated coop- 10 eration with efforts to institute such a board approved program and 11 shall have been determined by the board not to be a feasible candidate 12 for rehabilitation; such rehabilitation shall constitute treatment and 13 care as provided in this chapter. 14 w. Other cases. In all other cases of permanent partial disability, 15 the compensation shall be sixty-six and two-thirds percent of the 16 difference between the injured employee's average weekly wages and his 17 or her wage-earning capacity thereafter in the same employment or other- 18 wise. Nothing in this paragraph shall preclude the payment of compen- 19 sation under paragraphs a through t of this subdivision, however, the 20 employer or carrier shall be entitled to take credit for any payment of 21 compensation under such paragraphs a through t against a payment of 22 compensation under this paragraph. Compensation under this paragraph 23 shall be payable during the continuance of such permanent partial disa- 24 bility, without the necessity for the claimant who is entitled to bene- 25 fits at the time of classification to demonstrate ongoing attachment to 26 the labor market, but subject to reconsideration of the degree of such 27 impairment by the board on its own motion or upon application of any 28 party in interest however, all compensation payable under this paragraph 29 shall not exceed (i) five hundred twenty-five weeks in cases in which 30 the loss of wage-earning capacity is greater than ninety-five percent; 31 (ii) five hundred weeks in cases in which the loss of wage-earning 32 capacity is greater than ninety percent but not more than ninety-five 33 percent; (iii) four hundred seventy-five weeks in cases in which the 34 loss of wage-earning capacity is greater than eighty-five percent but 35 not more than ninety percent; (iv) four hundred fifty weeks in cases in 36 which the loss of wage-earning capacity is greater than eighty percent 37 but not more than eighty-five percent; (v) four hundred twenty-five 38 weeks in cases in which the loss of wage-earning capacity is greater 39 than seventy-five percent but not more than eighty percent; (vi) four 40 hundred weeks in cases in which the loss of wage-earning capacity is 41 greater than seventy percent but not more than seventy-five percent; 42 (vii) three hundred seventy-five weeks in cases in which the loss of 43 wage-earning capacity is greater than sixty percent but not more than 44 seventy percent; (viii) three hundred fifty weeks in cases in which the 45 loss of wage-earning capacity is greater than fifty percent but not more 46 than sixty percent; (ix) three hundred weeks in cases in which the loss 47 of wage-earning capacity is greater than forty percent but not more than 48 fifty percent; (x) two hundred seventy-five weeks in cases in which the 49 loss of wage-earning capacity is greater than thirty percent but not 50 more than forty percent; (xi) two hundred fifty weeks in cases in which 51 the loss of wage-earning capacity is greater than fifteen percent but 52 not more than thirty percent; and (xii) two hundred twenty-five weeks in 53 cases in which the loss of wage-earning capacity is fifteen percent or 54 less. For a claimant with a date of accident or disablement after the 55 effective date of [the] section one of subpart A of part NNN of chapter 56 59 of the laws of two thousand seventeen [that amended this subdivi-A. 337 9 1sion], where the carrier or employer has provided compensation pursuant 2 to subdivision five of this section beyond one hundred thirty weeks from 3 the date of accident or disablement, all subsequent weeks in which 4 compensation was paid shall be considered to be benefit weeks for 5 purposes of this section, with the carrier or employer receiving credit 6 for all such subsequent weeks against the amount of maximum benefit 7 weeks when permanent partial disability under this section is deter- 8 mined. In the event of payment for intermittent temporary partial disa- 9 bility paid after one hundred thirty weeks from the date of accident or 10 disablement, such time shall be reduced to a number of weeks, for which 11 the carrier will receive a credit against the maximum benefit weeks. For 12 a claimant with a date of accident or disablement after the effective 13 date of [the] section one of subpart A of part NNN of chapter 59 of the 14 laws of two thousand seventeen [that amended this subdivision], when 15 permanency is at issue, and a claimant has submitted medical evidence 16 that he or she is not at maximum medical improvement, and the carrier 17 has produced or has had a reasonable opportunity to produce an independ- 18 ent medical examination concerning maximum medical improvement, and the 19 board has determined that the claimant is not yet at maximum medical 20 improvement, the carrier shall not receive a credit for benefit weeks 21 prior to a finding that the claimant has reached maximum medical 22 improvement, at which time the carrier shall receive credit for any 23 weeks of temporary disability paid to claimant after such finding 24 against the maximum benefit weeks awarded under this subdivision. For 25 those claimants classified as permanently partially disabled who no 26 longer receive indemnity payments because they have surpassed their 27 number of maximum benefit weeks, the following provisions will apply: 28 (1) There will be a presumption that medical services shall continue 29 notwithstanding the completion of the time period for compensation set 30 forth in this section and the burden of going forward and the burden of 31 proof will lie with the carrier, self-insured employer or state insur- 32 ance fund in any application before the board to discontinue or suspend 33 such services. Medical services will continue during the pendency of any 34 such application and any appeals thereto. 35 (2) The board is directed to promulgate regulations that establish an 36 independent review and appeal by an outside agent or entity of the 37 board's choosing of any administrative law judge's determination to 38 discontinue or suspend medical services before a final determination of 39 the board. 40 4. Effect of award. An award made to a claimant under any paragraph of 41 subdivision three of this section shall in case of death arising from 42 causes other than the injury be payable to and for the benefit of the 43 persons following: 44 a. If there be a surviving spouse and no child of the deceased under 45 the age of eighteen years, to such spouse. 46 b. If there be a surviving spouse and surviving child or children of 47 the deceased under the age of eighteen years, one-half shall be payable 48 to the surviving spouse and the other half to the surviving child or 49 children. 50 The board may in its discretion require the appointment of a guardian 51 for the purpose of receiving the compensation of the minor child. In the 52 absence of such a requirement by the board the appointment for such a 53 purpose shall not be necessary. 54 c. If there be a surviving child or children of the deceased under the 55 age of eighteen years, but no surviving spouse then to such child or 56 children.A. 337 10 1 d. If there be no surviving spouse and no surviving child or children 2 of the deceased under the age of eighteen years, then to such dependent 3 or dependents as defined in section sixteen of this [chapter] article, 4 as directed by the board; and if there be no such dependents, then to 5 the estate of such deceased [in an amount not exceeding reasonable6funeral expenses] as provided in subdivision one of section sixteen of 7 this [chapter] article, or, if there be no estate, to the person or 8 persons paying the funeral expenses of such deceased in an amount not 9 exceeding reasonable funeral expenses as provided in subdivision one of 10 section sixteen of this [chapter] article. 11 An award for disability may be made after the death of the injured 12 employee. 13 4-a. Protracted temporary total disability in connection with perma- 14 nent partial disability. In case of temporary total disability and 15 permanent partial disability both resulting from the same injury, if the 16 temporary total disability continues for a longer period than the number 17 of weeks set forth in the following schedule, the period of temporary 18 total disability in excess of such number of weeks shall be added to the 19 compensation period provided in subdivision three of this section: Arm, 20 [thirty-two] sixteen weeks; leg, [forty] twenty weeks; hand, [thirty-21two] sixteen weeks; foot, [thirty-two] sixteen weeks; ear, [twenty-five] 22 twelve weeks; eye, [twenty] ten weeks; thumb, [twenty-four] twelve 23 weeks; first finger, [eighteen] nine weeks; great toe, [twelve] six 24 weeks; second finger, [twelve] six weeks; third finger, [eight] four 25 weeks; fourth finger, [eight] four weeks; toe other than great toe, 26 [eight] four weeks. 27 In any case resulting in loss or partial loss of use of arm, leg, 28 hand, foot, ear, eye, thumb, finger or toe, where the temporary total 29 disability does not extend beyond the periods above mentioned for such 30 injury, compensation shall be limited to the schedule contained in 31 subdivision three. 32 5. Temporary partial disability. In case of temporary partial disabil- 33 ity resulting in decrease of earning capacity, the compensation shall be 34 two-thirds of the difference between the injured employee's average 35 weekly wages before the accident and his wage earning capacity after the 36 accident in the same or other employment, which difference shall be the 37 injured employee's loss of wage-earning capacity. Compensation under 38 this subdivision shall be payable during the continuance of such tempo- 39 rary partial disability, without the necessity for the claimant to 40 demonstrate ongoing attachment to the labor market, unless the board 41 finds that the injured employee's loss of wages is wholly unrelated to 42 his or her partial disability. 43 (a) Compensation for permanent or temporary total disability due to an 44 accident or disablement resulting from an occupational disease that 45 occurs, (1) on or after January first, nineteen hundred seventy-eight, 46 shall not exceed one hundred twenty-five dollars per week, that occurs 47 (2) on or after July first, nineteen hundred seventy-eight, shall not 48 exceed one hundred eighty dollars per week, that occurs (3) on or after 49 January first, nineteen hundred seventy-nine, shall not exceed two 50 hundred fifteen dollars per week, that occurs (4) on or after July 51 first, nineteen hundred eighty-three, shall not exceed two hundred 52 fifty-five dollars per week, that occurs (5) on or after July first, 53 nineteen hundred eighty-four, shall not exceed two hundred seventy-five 54 dollars per week, that occurs (6) on or after July first, nineteen 55 hundred eighty-five, shall not exceed three hundred dollars per week, 56 that occurs (7) on or after July first, nineteen hundred ninety, shallA. 337 11 1 not exceed three hundred forty dollars per week; and in the case of 2 temporary total disability shall not be less than thirty dollars per 3 week and in the case of permanent total disability shall not be less 4 than twenty dollars per week except that if the employee's wages at the 5 time of injury are less than thirty or twenty dollars per week respec- 6 tively, he or she shall receive his or her full weekly wages. Compen- 7 sation for permanent or temporary partial disability due to an accident 8 or disablement resulting from an occupational disease that occurs (1) on 9 or after [January first] March thirteenth, nineteen hundred seventy- 10 eight, shall not exceed one hundred five dollars per week, that occurs 11 (2) on or after July first, nineteen hundred eighty-three, shall not 12 exceed one hundred twenty-five dollars per week, that occurs (3) on or 13 after July first, nineteen hundred eighty-four, shall not exceed one 14 hundred thirty-five dollars per week, that occurs (4) on or after July 15 first, nineteen hundred eighty-five, shall not exceed one hundred fifty 16 dollars per week, that occurs (5) on or after July first, nineteen 17 hundred ninety, shall not exceed two hundred eighty dollars per week; 18 nor be less than twenty dollars per week; except that if the employee's 19 wages at the time of injury are less than twenty dollars per week, he or 20 she shall receive his or her full weekly wages. In no event shall 21 compensation when combined with decreased earnings or earning capacity 22 exceed the amount of wages which the employee was receiving at the time 23 the injury occurred. Compensation for permanent or temporary partial 24 disability, or for permanent or temporary total disability due to an 25 accident or disablement resulting from an occupational disease that 26 occurs (1) on or after July first, nineteen hundred ninety-one and prior 27 to July first, nineteen hundred ninety-two, shall not exceed three 28 hundred fifty dollars per week; (2) on or after July first, nineteen 29 hundred ninety-two, shall not exceed four hundred dollars per week; nor 30 be less than forty dollars per week except that if the employee's wages 31 at the time of injury are less than forty dollars per week, the employee 32 shall receive his or her full wages. Compensation for permanent or 33 temporary partial disability, or for permanent or temporary total disa- 34 bility due to an accident or disablement resulting from an occupational 35 disease that occurs (1) on or after July first, two thousand seven shall 36 not exceed five hundred dollars per week, (2) on or after July first, 37 two thousand eight shall not exceed five hundred fifty dollars per week, 38 (3) on or after July first, two thousand nine shall not exceed six 39 hundred dollars per week, and (4) on or after July first, two thousand 40 ten, and on or after July first of each succeeding year, shall not 41 exceed two-thirds of the New York state average weekly wage for the year 42 in which it is reported. Compensation for permanent or temporary partial 43 disability, or for permanent or temporary total disability due to an 44 accident or disablement resulting from an occupational disease that 45 occurs on or after July first, two thousand seven shall not be less than 46 one hundred dollars per week except that if the employee's wages at the 47 time of injury are less than one hundred dollars per week, the employee 48 shall receive his or her full wages. Compensation for permanent or 49 temporary partial disability, or for permanent or temporary total disa- 50 bility due to an accident or disablement resulting from an occupational 51 disease that occurs on or after May first, two thousand thirteen shall 52 not be less than one hundred fifty dollars per week except that if the 53 employee's wages at the time of injury are less than one hundred fifty 54 dollars per week, the employee shall receive his or her full wages. 55 Compensation for permanent or temporary partial disability, or for 56 permanent or temporary total disability due to an accident or disable-A. 337 12 1 ment resulting from an occupational disease that occurs on or after July 2 first of each year commencing in two thousand twenty-two shall not be 3 less than one-sixth of the New York state average weekly wage for the 4 year in which it is reported. In no event shall compensation when 5 combined with decreased earnings [or earning capacity] exceed the amount 6 of wages the employee was receiving at the time the injury occurred. 7 Compensation for permanent or temporary partial disability, or for 8 permanent or temporary total disability due to an accident or disable- 9 ment resulting from an occupational disease or injury that occurred as a 10 result of World Trade Center rescue activity by an employee of a private 11 voluntary hospital, who passed a physical examination upon employment as 12 a rescue worker that failed to reveal evidence of a condition that was 13 the proximate cause of disablement or occupational disease or injury, 14 shall not exceed three-quarters of a claimant's wage on September elev- 15 enth, two thousand one. In no event shall compensation when combined 16 with decreased earnings or earning capacity exceed the amount of wages 17 the employee was receiving on September eleventh, two thousand one. 18 10. Cost-of-living adjustments of disability benefits in certain 19 cases. (a) Notwithstanding any other provision of law, in addition to 20 any other amount received pursuant to this article as disability bene- 21 fits, an employee with a permanent total disability or the beneficiary 22 dependent of such employee shall be entitled to an additional allowance, 23 to be known as a cost-of-living adjustment allowance, payable annually. 24 (b) The cost-of-living adjustment allowance shall be computed by 25 applying an adjustment for regional costs of living and shall be based 26 on fifty percent of the annual increase in the consumer price index as 27 promulgated by the United States department of labor. 28 § 7. Subdivisions 1-a, 1-b, 1-c, 1-d, 2, 2-a, 2-b, and 4-d of section 29 16 of the workers' compensation law, subdivisions 1-a, 1-b, 1-c and 2 as 30 amended by chapter 168 of the laws of 1979, subdivisions 1-d, 2-b and 31 4-d as added by chapter 689 of the laws of 2007 and subdivision 2-a as 32 amended by chapter 174 of the laws of 1981, are amended and two new 33 subdivisions 1-e and 2-c are added to read as follows: 34 1-a. For the purpose of this section, (1) the term dependent blind or 35 physically disabled as used herein in relation to dependent children 36 shall be deemed to mean totally blind or physically disabled children 37 whose disablement is total and permanent, (2) the term surviving spouse 38 shall be deemed to mean the legal spouse but shall not include a spouse 39 who has abandoned the deceased, [and] (3) the term abandoned shall be 40 deemed to mean such an abandonment as would be sufficient under section 41 two hundred of the domestic relations law to sustain a judgment of sepa- 42 ration on that ground, and (4) the terms "widowhood" or "widowerhood" 43 shall apply to a surviving spouse without regard to remarriage. 44 1-b. If there be a surviving spouse and no child of the deceased under 45 the age of eighteen years and no child of any age dependent blind or 46 physically disabled, and the death occurs on or after July first, nine- 47 teen hundred forty-eight, and prior to January first, nineteen hundred 48 seventy-eight, to such spouse forty per centum of the average wages of 49 the deceased during widowhood or widowerhood [with two years' compen-50sation in one sum, upon remarriage]; and where the death occurred prior 51 to July first, nineteen hundred forty-eight, to such wife (or dependent 52 husband) thirty per centum of such wages during widowhood (or dependent 53 widowerhood) [with two years' compensation in one sum, upon remarriage]. 54 1-c. If there be a surviving spouse and no child of the deceased under 55 the age of eighteen years or under the age of twenty-three years if 56 enrolled and attending as a full time student in an accredited educa-A. 337 13 1 tional institution and such enrollment and full time attendance is 2 certified by such institution and no child of any age dependent blind or 3 physically disabled, and the death occurs on or after January first, 4 nineteen hundred seventy-eight, to such spouse sixty-six and two-thirds 5 per centum of the average wages of the deceased during widowhood or 6 widowerhood [with two years' compensation, in one sum, upon remarriage]. 7 Where the death occurs on or after January first, nineteen hundred 8 seventy-eight, and the spouse is receiving the survivors insurance bene- 9 fits under the social security act, the death benefit payable under this 10 section shall be reduced in accordance with the provisions of table No. 11 [1] I below by five per centum of the spouse's share of the survivor's 12 insurance benefits under the social security act for each ten dollars of 13 deceased's average weekly wage in excess of one hundred dollars provided 14 that in no case shall such reduction exceed fifty per centum of said 15 spouse's share of the survivors insurance benefits under the social 16 security act. 17 TABLE No. I 18 Offset provisions applicable in death benefits 19 where there is a sole surviving spouse 20 AVERAGE WEEKLY WAGE PERCENTAGE OF SPOUSE'S 21 SHARE OF SURVIVORS 22 INSURANCE BENEFITS 23 over $100 up to and including $110 ................................... 5 24 over $110 up to and including $120 .................................. 10 25 over $120 up to and including $130 .................................. 15 26 over $130 up to and including $140 .................................. 20 27 over $140 up to and including $150 .................................. 25 28 over $150 up to and including $160 .................................. 30 29 over $160 up to and including $170 .................................. 35 30 over $170 up to and including $180 .................................. 40 31 over $180 up to and including $190 .................................. 45 32 over $190 up to and including $200 .................................. 50 33 over $200 ........................................................... 50 34 1-d. If there be a surviving spouse of an employee of a private volun- 35 tary hospital killed in a World Trade Center rescue, who passed a phys- 36 ical examination upon employment as a rescue worker that failed to 37 reveal evidence of a condition that was the proximate cause of death, 38 and no child of the deceased under the age of eighteen years, or under 39 the age of twenty-three years if enrolled and attending as a full-time 40 student in an accredited educational institution and such enrollment and 41 full-time attendance is certified by such institution, and no child of 42 any age dependent blind or physically disabled, to such spouse seventy- 43 five per centum of the average wages of the deceased during widowhood or 44 widowerhood[, with two years' compensation, in one sum, upon remarriage.45Where such death occurs, and the spouse is receiving the survivors46insurance benefits under the social security act, the death benefit47payable under this section shall be reduced in accordance with the48provisions of table No. I in subdivision one-c of this section by five49per centum of the spouse's share of the survivor's insurance benefits50under the social security act for each ten dollars of deceased's average51weekly wage in excess of one hundred dollars; provided that in no case52shall such reduction exceed fifty per centum of such spouse's share of53the survivors insurance benefits under the social security act].A. 337 14 1 1-e. If there be a surviving spouse and no child of the deceased under 2 the age of eighteen years or under the age of twenty-three years if 3 enrolled and attending as a full-time student in an accredited educa- 4 tional institution and such enrollment and full-time attendance is 5 certified by such institution and no child of any age dependent blind or 6 physically disabled, and the death occurs on or after January first, two 7 thousand twenty, to such spouse sixty-six and two-thirds per centum of 8 the average wages of the deceased during widowhood or widowerhood. 9 2. If there be a surviving spouse and a surviving child or children of 10 the deceased under the age of eighteen years or a surviving child or 11 children of any age dependent blind or physically disabled, and the 12 death occurs on or after July first, nineteen hundred forty-eight, and 13 prior to January first, nineteen hundred seventy-eight, to such spouse 14 thirty per centum of the average wages of the deceased during widowhood 15 or widowerhood [with two years' compensation in one sum, upon remar-16riage]; and the additional amount of twenty per centum of such wages for 17 each such child until the age of eighteen years or until the removal of 18 the dependency of the blind or physically disabled child or children; in 19 case of the subsequent death [or remarriage] of such surviving spouse 20 any surviving child of the deceased employee, at the time under eighteen 21 years of age or dependent through mental or physical infirmity, shall 22 have his compensation increased to thirty per centum of such wages, and 23 the same shall be payable until he shall reach the age of eighteen years 24 or until such dependent blind or physically disabled condition shall 25 have been removed; provided that the total amount payable shall in no 26 case exceed sixty-six and two-thirds per centum of such wages. [Upon27statutory termination of compensation payments to all such children, the28compensation of the surviving spouse shall be increased to forty per29centum of such wages with two years' compensation, at such rate, in one30sum, upon remarriage.] 31 If there be a surviving wife (or dependent husband) and any of the 32 aforementioned surviving children, and the death occurred prior to July 33 first, nineteen hundred forty-eight, to such wife (or dependent husband) 34 thirty per centum of the average wages of the deceased during widowhood 35 (or dependent widowerhood) [with two years' compensation in one sum,36upon remarriage]; and the additional amount of ten per centum of such 37 wages for each such child until eighteen years of age or until the 38 removal of the dependency of the blind or physically disabled child or 39 children; in case of the subsequent death [or remarriage] of such 40 surviving wife (or dependent husband) any surviving child of the 41 deceased shall have his compensation increased to fifteen per centum of 42 such wages until he shall reach the age of eighteen years or until such 43 dependent blind or physically disabled condition shall have been 44 removed; provided that the total amount payable shall in no case exceed 45 sixty-six and two-thirds per centum of such wages. 46 The board may in its discretion require the appointment of a guardian 47 for the purpose of receiving the compensation of a minor child or a 48 dependent blind or physically disabled child. In the absence of such a 49 requirement by the board the appointment of a guardian for such purposes 50 shall not be necessary. 51 2-a. If there be a surviving spouse and a surviving child under the 52 age of eighteen years or under the age of twenty-three years if enrolled 53 and attending as a full time student in an accredited educational insti- 54 tution and such enrollment and full time attendance is certified by such 55 institution or a surviving child of any age dependent blind or phys- 56 ically disabled and the death occurs on or after January first, nineteenA. 337 15 1 hundred seventy-eight, to such spouse thirty-six and two-thirds per 2 centum of the average wages of the deceased during widowhood or widower- 3 hood [with two years' compensation in one sum, upon remarriage]; and 4 thirty per centum of such wages to such child under the age of eighteen 5 years or under the age of twenty-three years if enrolled and attending 6 as a full time student in an accredited educational institution and such 7 enrollment and full time attendance is certified by such institution or 8 a surviving child of any age dependent blind or physically disabled; in 9 the case of the subsequent death of such surviving spouse the surviving 10 child shall have his compensation increased to sixty-six and two-thirds 11 per centum of such wages and the same shall be payable so long as he is 12 under the age of eighteen years or under the age of twenty-three years 13 if enrolled and attending as a full time student in an accredited educa- 14 tional institution and such enrollment and full time attendance is 15 certified by such institution or a surviving child of any age dependent 16 blind or physically disabled; upon statutory termination of compensation 17 payable to such child, the compensation of the surviving spouse shall be 18 increased to sixty-six and two-thirds per centum of such wages [with two19years' compensation, at such rate, in one sum, upon remarriage. Upon20remarriage of such surviving spouse, the surviving child shall continue21to receive thirty per centum of such wages]. Where the death occurs on 22 or after January first, nineteen hundred seventy-eight and the spouse is 23 receiving survivors insurance benefits under the social security act, 24 the death benefit payable under this section shall be reduced by five 25 per centum of the spouse's share of the survivors insurance benefits 26 under the social security act for each ten dollars of deceased's average 27 weekly wage in excess of one hundred dollars provided that in no case 28 shall such reduction exceed fifty per centum of said spouse's share of 29 the survivors insurance benefits under the social security act as set 30 forth in table No. I below. 31 TABLE No. I 32 Offset provisions applicable in death benefits 33 where there is a surviving spouse and one child 34 AVERAGE WEEKLY WAGE PERCENTAGE OF SPOUSE'S 35 SHARE OF SURVIVORS 36 INSURANCE BENEFITS 37 over $100 up to and including $110 ................................... 5 38 over $110 up to and including $120 .................................. 10 39 over $120 up to and including $130 .................................. 15 40 over $130 up to and including $140 .................................. 20 41 over $140 up to and including $150 .................................. 25 42 over $150 up to and including $160 .................................. 30 43 over $160 up to and including $170 .................................. 35 44 over $170 up to and including $180 .................................. 40 45 over $180 up to and including $190 .................................. 45 46 over $190 up to and including $200 .................................. 50 47 over $200 ........................................................... 50 48 If there be a surviving spouse and two or more surviving children 49 under the age of eighteen years or under the age of twenty-three years 50 if enrolled and attending as a full time student in an accredited educa- 51 tional institution and such enrollment and full time attendance is 52 certified by such institution or a surviving child or children of any 53 age dependent blind or physically disabled and a death occurs on orA. 337 16 1 after January first, nineteen hundred seventy-eight, to such spouse 2 thirty-six and two-thirds per centum of the average wage of the deceased 3 during widowhood or widowerhood [with two years' compensation in one sum4upon remarriage]; and thirty per centum of such wages to such children 5 under the age of eighteen years or under the age of twenty-three years 6 if enrolled and attending as a full time student in an accredited educa- 7 tional institution and such enrollment and full time attendance is 8 certified by such institution or a surviving child or children of any 9 age dependent blind or physically disabled, share and share alike; in 10 case of the subsequent death of such surviving spouse the surviving 11 children shall have their compensation increased to sixty-six and two- 12 thirds per centum of such wages and the aggregate sum shall be payable, 13 share and share alike, so long as they are under the age of eighteen 14 years or under the age of twenty-three years if enrolled and attending 15 as a full time student in an accredited educational institution and such 16 enrollment and full time attendance is certified by such institution or 17 a surviving child or children of any age dependent blind or physically 18 disabled. [Upon remarriage of such surviving spouse, if there be two19surviving children each shall receive twenty-five per centum of such20wages, and if there are surviving more than two children under the age21of eighteen years or under the age of twenty-three if enrolled and22attending as a full time student in an accredited educational institu-23tion and such enrollment and full time attendance is certified by such24institution or a surviving child or children of any age dependent blind25or physically disabled sixty-six and two-thirds per centum of such wages26share and share alike.] Upon statutory termination of compensation paya- 27 ble to such children, the compensation of the surviving spouse shall be 28 increased to sixty-six and two-thirds per centum of such wages [with two29years' compensation, at such rate, in one sum, upon remarriage]. Where 30 the death occurs on or after January first, nineteen hundred seventy- 31 eight, and the spouse is receiving survivors insurance benefits under 32 the social security act, the death benefits payable under this section 33 shall be reduced by five per centum of the spouse's share of the survi- 34 vors insurance benefits under the social security act for each ten 35 dollars of deceased's average weekly wage in excess of one hundred fifty 36 dollars provided that in no case shall such reduction exceed fifty per 37 centum of said spouse's share of the survivors insurance benefits under 38 the social security act as set forth in table No. II below. 39 TABLE No. II 40 Offset provisions applicable in death benefits 41 where there is a surviving spouse and two or more children 42 AVERAGE WEEKLY WAGE PERCENTAGE OF SPOUSE'S 43 SHARE OF SURVIVORS 44 INSURANCE BENEFITS 45 over $150 up to and including $160 ................................... 5 46 over $160 up to and including $170 .................................. 10 47 over $170 up to and including $180 .................................. 15 48 over $180 up to and including $190 .................................. 20 49 over $190 up to and including $200 .................................. 25 50 over $200 up to and including $210 .................................. 30 51 over $210 up to and including $220 .................................. 35 52 over $220 up to and including $230 .................................. 40 53 over $230 up to and including $240 .................................. 45A. 337 17 1 over $240 up to and including $250 .................................. 50 2 over $250 ........................................................... 50 3 2-b. If there be a surviving spouse of an employee of a private volun- 4 tary hospital killed in a World Trade Center rescue, who passed a phys- 5 ical examination upon employment as a rescue worker that failed to 6 reveal evidence of a condition that was the proximate cause of death, 7 and a surviving child under the age of eighteen years, or under the age 8 of twenty-three years if enrolled and attending as a full-time student 9 in an accredited educational institution and such enrollment and full- 10 time attendance is certified by such institution, or a surviving child 11 of any age dependent blind or physically disabled, to such spouse forty 12 per centum of the average wages of the deceased during widowhood or 13 widowerhood[, with two years' compensation in one sum, upon remarriage]; 14 and thirty-five per centum of such wages to such child under the age of 15 eighteen years, or under the age of twenty-three years if enrolled and 16 attending as a full-time student in an accredited educational institu- 17 tion and such enrollment and full-time attendance is certified by such 18 institution, or a surviving child of any age dependent blind or phys- 19 ically disabled; in the case of the subsequent death of such surviving 20 spouse the surviving child shall have his or her compensation increased 21 to seventy-five per centum of such wages and the same shall be payable 22 so long as he or she is under the age of eighteen years, or under the 23 age of twenty-three years if enrolled and attending as a full-time 24 student in an accredited educational institution and such enrollment and 25 full-time attendance is certified by such institution, or a surviving 26 child of any age dependent blind or physically disabled; upon statutory 27 termination of compensation payable to such child, the compensation of 28 the surviving spouse shall be increased to seventy-five per centum of 29 such wages [with two years' compensation, at such rate, in one sum, upon30remarriage]. [Upon remarriage of such surviving spouse, the surviving31child shall continue to receive thirty-five per centum of such wages.32Where such death occurs, and the spouse is receiving survivors insurance33benefits under the social security act, the death benefit payable under34this section shall be reduced by five per centum of the spouse's share35of the survivors insurance benefits under the social security act for36each ten dollars of deceased's average weekly wage in excess of one37hundred dollars; provided that in no case shall such reduction exceed38fifty per centum of such spouse's share of the survivors insurance bene-39fits under the social security act as set forth in table No. I in subdi-40vision one-c of this section.] If there be a surviving spouse of an 41 employee of a private voluntary hospital killed in a World Trade Center 42 rescue, who passed a physical examination upon employment as a rescue 43 worker that failed to reveal evidence of a condition that was the proxi- 44 mate cause of death, and two or more surviving children under the age of 45 eighteen years, or under the age of twenty-three years if enrolled and 46 attending as a full-time student in an accredited educational institu- 47 tion and such enrollment and full-time attendance is certified by such 48 institution, or a surviving child or children of any age dependent blind 49 or physically disabled and a death occurs on or after September elev- 50 enth, two thousand one, to such spouse forty per centum of the average 51 wage of the deceased during widowhood or widowerhood [with two years'52compensation in one sum upon remarriage]; and thirty-five per centum of 53 such wages to such children under the age of eighteen years, or under 54 the age of twenty-three years if enrolled and attending as a full-time 55 student in an accredited educational institution and such enrollment and 56 full-time attendance is certified by such institution, or a survivingA. 337 18 1 child or children of any age dependent blind or physically disabled, 2 share and share alike; in case of the subsequent death of such surviving 3 spouse the surviving children shall have their compensation increased to 4 seventy-five per centum of such wages and the aggregate sum shall be 5 payable, share and share alike, so long as they are under the age of 6 eighteen years, or under the age of twenty-three years if enrolled and 7 attending as a full-time student in an accredited educational institu- 8 tion and such enrollment and full-time attendance is certified by such 9 institution, or a surviving child or children of any age dependent blind 10 or physically disabled. [Upon remarriage of such surviving spouse, if11there be two surviving children each shall receive thirty-seven and12one-half per centum of such wages, and if there are surviving more than13two children under the age of eighteen years, or under the age of twen-14ty-three if enrolled and attending as a full-time student in an accred-15ited educational institution and such enrollment and full-time attend-16ance is certified by such institution, or a surviving child or children17of any age dependant blind or physically disabled, seventy-five per18centum of such wages share and share alike.] Upon statutory termination 19 of compensation payable to such children, the compensation of the 20 surviving spouse shall be increased to seventy-five per centum of such 21 wages [with two years' compensation, at such rate, in one sum, upon22remarriage]. Where the death occurs on or after September eleventh, two 23 thousand one, and the spouse is receiving survivors insurance benefits 24 under the social security act, the death benefits payable under this 25 section shall be reduced by five per centum of the spouse's share of the 26 survivors insurance benefits under the social security act for each ten 27 dollars of deceased's average weekly wage in excess of one hundred fifty 28 dollars; provided that in no case shall such reduction exceed fifty per 29 centum of said spouse's share of the survivors insurance benefits under 30 the social security act as set forth in table No. II in subdivision 31 two-a of this section. 32 2-c. If there be a surviving spouse and a surviving child under the 33 age of eighteen years or under the age of twenty-three years if enrolled 34 and attending as a full-time student in an accredited educational insti- 35 tution and such enrollment and full-time attendance is certified by such 36 institution or a surviving child of any age dependent blind or phys- 37 ically disabled and the death occurs on or after January first, two 38 thousand twenty, to such spouse thirty-six and two-thirds per centum of 39 the average wages of the deceased during widowhood or widowerhood; and 40 thirty per centum of such wages to such child under the age of eighteen 41 years or under the age of twenty-three years if enrolled and attending 42 as a full-time student in an accredited educational institution and such 43 enrollment and full-time attendance is certified by such institution or 44 a surviving child of any age dependent blind or physically disabled; in 45 the case of the subsequent death of such surviving spouse the surviving 46 child shall have their compensation increased to sixty-six and two- 47 thirds per centum of such wages and the same shall be payable so long as 48 they are under the age of eighteen years or under the age of twenty- 49 three years if enrolled and attending as a full-time student in an 50 accredited educational institution and such enrollment and full-time 51 attendance is certified by such institution or a surviving child of any 52 age dependent blind or physically disabled; upon statutory termination 53 of compensation payable to such child, the compensation of the surviving 54 spouse shall be increased to sixty-six and two-thirds per centum of such 55 wages.A. 337 19 1 If there be a surviving spouse and two or more surviving children 2 under the age of eighteen years or under the age of twenty-three years 3 if enrolled and attending as a full-time student in an accredited educa- 4 tional institution and such enrollment and full-time attendance is 5 certified by such institution or a surviving child or children of any 6 age dependent blind or physically disabled and a death occurs on or 7 after January first, two thousand twenty, to such spouse thirty-six and 8 two-thirds per centum of the average wage of the deceased during widow- 9 hood or widowerhood; and thirty per centum of such wages to such chil- 10 dren under the age of eighteen years or under the age of twenty-three 11 years if enrolled and attending as a full-time student in an accredited 12 educational institution and such enrollment and full-time attendance is 13 certified by such institution or a surviving child or children of any 14 age dependent blind or physically disabled, share and share alike; in 15 case of the subsequent death of such surviving spouse the surviving 16 children shall have their compensation increased to sixty-six and two- 17 thirds per centum of such wages and the aggregate sum shall be payable, 18 share and share alike, so long as they are under the age of eighteen 19 years or under the age of twenty-three years if enrolled and attending 20 as a full-time student in an accredited educational institution and such 21 enrollment and full-time attendance is certified by such institution or 22 a surviving child or children of any age dependent blind or physically 23 disabled. Upon statutory termination of compensation payable to such 24 children, the compensation of the surviving spouse shall be increased to 25 sixty-six and two-thirds per centum of such wages. 26 4-d. If there be no surviving spouse or child, or children of an 27 employee of a private voluntary hospital killed in a World Trade Center 28 rescue, who passed a physical examination upon employment as a rescue 29 worker that failed to reveal evidence of a condition that was the proxi- 30 mate cause of death, under the age of eighteen years, or under the age 31 of twenty-three years if enrolled and attending as a full-time student 32 in an accredited educational institution and such enrollment and full- 33 time attendance is certified by such institution, or dependent blind or 34 physically disabled child of any age, or grandchildren or brothers and 35 sisters if dependent upon the deceased at the time of the accident, 36 under the age of eighteen years, or under the age of twenty-three years 37 if enrolled and attending as a full-time student in an accredited educa- 38 tional institution and such enrollment and full-time attendance is 39 certified by such institution, or disabled blind or physically disabled 40 grandchildren or brothers and sisters of any age, then a sum of [fifty] 41 one hundred thousand dollars shall be paid to the deceased's surviving 42 parents or if there be no surviving parents to the deceased's estate. 43 § 8. The workers' compensation law is amended by adding a new section 44 17-b to read as follows: 45 § 17-b. Limited English proficiency. 1. The board shall provide trans- 46 lation of all documents and forms used by or issued to injured employ- 47 ees. The translation shall be in the six most common non-English 48 languages spoken by individuals with limited-English proficiency in the 49 state of New York. 50 2. The board shall provide interpretation services to injured employ- 51 ees with respect to its provision of services, information and/or bene- 52 fits. 53 3. The board shall publish a language access plan that reflects: 54 (a) the means by which it provides language assistance services; 55 (b) the titles of all available translated documents and the languages 56 into which they have been translated;A. 337 20 1 (c) the number of public contact positions at the board and the number 2 of bilingual employees in public contact positions, including the 3 languages they speak; 4 (d) a training plan for board employees which includes, at minimum, 5 annual training on its language access policies and how to provide 6 language assistance services; 7 (e) a plan for annual internal monitoring of the board's language 8 access plan; 9 (f) a plan of how the board intends to notify injured employees of 10 offered language assistant services; and 11 (g) the appointment of a language access coordinator at the board, who 12 shall be publicly identified. 13 4. The language access coordinator for the board shall monitor the 14 agency's compliance with this section by annually collecting data on the 15 provision of language assistance services, the availability of trans- 16 lated materials, whether signage is properly posted, and any other rele- 17 vant measures. 18 § 9. Section 18 of the workers' compensation law, as amended by chap- 19 ter 747 of the laws of 1947, is amended to read as follows: 20 § 18. Notice of injury or death. Notice of an injury or death for 21 which compensation is payable under this chapter shall be given to the 22 employer within thirty days after the accident causing such injury, and 23 also in case of the death of the employee resulting from such injury, 24 within thirty days after such death. Such notice may be given by any 25 person claiming to be entitled to compensation, or by some one in his 26 behalf. The notice shall be in writing, and contain the name and address 27 of the employee, and state in ordinary language the time, place, nature 28 and cause of the injury, and be signed by him or by a person on his 29 behalf or, in case of death, by any one or more of his dependents, or by 30 a person, on their behalf. It shall be given to the employer by deliver- 31 ing it to him or sending it by mail, by registered letter, addressed to 32 the employer at his or its last known place of business; provided that, 33 if the employer be a partnership then such notice may be so given to any 34 one of the partners, and if the employer be a corporation, then such 35 notice may be given to any agent or officer thereof upon whom legal 36 process may be served, or any agent in charge of his business in the 37 place where the injury occurred. The failure to give notice of injury or 38 notice of death unless excused by the board either on the ground that 39 notice for some sufficient reason could not have been given, or on the 40 ground that the employer, or his or its agents in charge of the business 41 in the place where the accident occurred or having immediate supervision 42 of the employee to whom the accident happened, had knowledge of the 43 accident or death, or on the ground that the employer has not been prej- 44 udiced thereby, shall be a bar to any claim under this chapter, but the 45 employer and the insurance carrier shall be deemed to have waived such 46 notice unless the objection to the failure to give such notice or the 47 insufficiency thereof, is raised before the board on the first hearing 48 of the claim field by such injured employee, or his or her dependents at 49 which all parties in interest are present, or represented, and at which 50 the claimant, or principal beneficiary, testifies. The burden of proof 51 on the issue of prejudice shall rest with the employer. 52 § 10. Subdivision 1 of section 20 of the workers' compensation law, as 53 amended by chapter 635 of the laws of 1996, is amended to read as 54 follows: 55 1. At any time after [the expiration of the first seven days of disa-56bility on the part of] an injury the injured employee, or at any timeA. 337 21 1 after the employee's death, a claim for compensation may be presented to 2 the employer or to the chair. The board shall hold an initial hearing 3 in each claim and shall have full power and authority to determine all 4 questions in relation to the payment of claims presented to it for 5 compensation under the provisions of this chapter. The chair or board 6 shall make or cause to be made such investigation as it deems necessary, 7 and upon application of either party, shall order a hearing, and within 8 thirty days after a claim for compensation is submitted under this 9 section, or such hearing closed, shall make or deny an award, determin- 10 ing such claim for compensation, and file the same in the office of the 11 chair. Immediately after such filing the chair shall send to the parties 12 a copy of the decision. Upon a hearing pursuant to this section either 13 party may present evidence and be represented by counsel. The decision 14 of the board shall be final as to all questions of fact, and, except as 15 provided in section twenty-three of this article, as to all questions of 16 law. Except as provided in section twenty-seven of this article, all 17 awards of the board shall draw simple interest from thirty days after 18 the making thereof at the rate provided in section five thousand four of 19 the civil practice law and rules. Whenever a hearing or proceeding for 20 the determination of a claim for compensation is begun before a referee, 21 pursuant to the provisions of this chapter, such hearing or proceeding 22 or any adjourned hearing thereon shall continue before the same referee 23 until a final determination awarding or denying compensation, except in 24 the absence, inability or disqualification to act of such referee, or 25 for other good cause, in which event such hearing or proceeding may be 26 continued before another referee by order of the chair or board. 27 § 11. Section 24 of the workers' compensation law, as amended by chap- 28 ter 27 of the laws of 2022, is amended by adding a new subdivision 5 to 29 read as follows: 30 5. Where the claim is solely for medical treatment, and no award of 31 compensation is made, attorneys and counselors-at-law may submit a claim 32 for legal services rendered in connection with obtaining authorization 33 or approval for such medical treatment, including the provision of 34 advice and representation for the injured worker. The board shall review 35 and approve such claims, having due regard for the services rendered and 36 whether authorization or approval was obtained. The fees awarded to an 37 attorney pursuant to this subdivision shall be paid by the employer or 38 carrier. Any attorney fee awarded pursuant to this subdivision shall 39 become a credit against a subsequent attorney fee requested pursuant to 40 subdivision (b) of this section. 41 § 12. Subdivision 2-b of section 25 of the workers' compensation law 42 is REPEALED and subdivision 2-c is renumbered subdivision 2-b. 43 § 13. Paragraphs (b) and (c) of subdivision 3 of section 25 of the 44 workers' compensation law, as amended by chapter 61 of the laws of 1986, 45 are amended to read as follows: 46 (b) Nothing herein shall limit the right of the board in a particular 47 case to hold a hearing and make an award in accordance with other 48 provisions of this chapter. No case shall be closed and no decision 49 shall be issued without a hearing upon notice to all parties interested 50 and without giving to all such parties an opportunity to be heard. 51 (c) The board shall keep an accurate stenographic record of all hear- 52 ings held. Whenever a hearing must be continued or adjourned because 53 the carrier or employer has engaged in dilatory tactics or exhibited 54 unjustified lack of preparedness, the board shall impose a penalty of 55 twenty-five dollars to be paid to the fund created by subdivision two of 56 section one hundred fifty-one of this chapter and shall in addition makeA. 337 22 1 an award of seventy-five dollars payable to the injured worker or his or 2 her dependants. Dilatory tactics may include but shall not be limited 3 to: failing to subpoena medical witnesses or to secure an order to show 4 cause as directed by the referee, failing to bring proper files, failing 5 to appear, failing to produce witnesses or documents after they have 6 been requested by the referee or examiner or as directed by the hearing 7 notice, unnecessarily protracting the production of evidence, or engag- 8 ing in a pattern of delay which unduly delays resolution, except that no 9 penalty shall be imposed nor award made under this subdivision if the 10 carrier or employer produces evidence sufficient to excuse its conduct 11 to the satisfaction of the referee. 12 § 14. Subdivision 1, the fifth undesignated paragraph of subdivision 5 13 and subdivision 6 of section 29 of the workers' compensation law, subdi- 14 vision 1 as amended by chapter 805 of the laws of 1984 and as further 15 amended by section 104 of part A of chapter 62 of the laws of 2011, the 16 fifth undesignated paragraph of subdivision 5 as amended by chapter 246 17 of the laws of 1967, and subdivision 6 as amended by chapter 635 of the 18 laws of 1996, are amended to read as follows: 19 1. If an employee entitled to compensation under this chapter be 20 injured or killed by the negligence or wrong of another not in the same 21 employ, such injured employee, or in case of death, his dependents, need 22 not elect whether to take compensation and medical benefits under this 23 chapter or to pursue his remedy against such other but may take such 24 compensation and medical benefits and at any time either prior thereto 25 or within six months after the awarding of compensation or within nine 26 months after the enactment of a law or laws creating, establishing or 27 affording a new or additional remedy or remedies, pursue his remedy 28 against such other subject to the provisions of this chapter. If such 29 injured employee, or in case of death, his dependents, take or intend to 30 take compensation, and medical benefits in the case of an employee, 31 under this chapter and desire to bring action against such other, such 32 action must be commenced not later than six months after the awarding of 33 compensation or not later than nine months after the enactment of such 34 law or laws creating, establishing or affording a new or additional 35 remedy or remedies and in any event before the expiration of one year 36 from the date such action accrues. In such case, the state insurance 37 fund, if compensation be payable therefrom, and otherwise the person, 38 association, corporation or insurance carrier liable for the payment of 39 such compensation, as the case may be, shall have a lien on the proceeds 40 of any recovery from such other to the extent such recovery is for lost 41 wages or medical expenses, whether by judgment, settlement or otherwise, 42 after the deduction of the reasonable and necessary expenditures, 43 including attorney's fees, incurred in effecting such recovery, to the 44 extent of the total amount of compensation awarded under or provided or 45 estimated by this chapter for such case and the expenses for medical 46 treatment paid or to be paid by it and to such extent such recovery 47 shall be deemed for the benefit of such fund, person, association, 48 corporation or carrier. Should the employee or his dependents secure a 49 recovery from such other, whether by judgment, settlement or otherwise, 50 such employee or dependents may apply on notice to such lienor to the 51 court in which the third party action was instituted, or to a court of 52 competent jurisdiction if no action was instituted, for an order appor- 53 tioning the reasonable and necessary expenditures, including attorneys' 54 fees, incurred in effecting such recovery. Such expenditures shall be 55 equitably apportioned by the court between the employee or his depen- 56 dents and the lienor. Notice of the commencement of such action shall beA. 337 23 1 given within thirty days thereafter to the chairman, the employer and 2 the insurance carrier upon a form prescribed by the chairman. Any of the 3 foregoing providers of compensation and/or medical benefits which has 4 recovered a lien pursuant to the provisions hereof against the recovery 5 of a person injured on or after February first, nineteen hundred seven- 6 ty-four and before July first, nineteen hundred seventy-eight, through 7 the use or operation of a motor vehicle in this state, shall notify such 8 person by certified mail in a manner to be approved by the chairman and 9 the superintendent of financial services of the responsibility of an 10 "insurer" (as defined in subsection (g) of section five thousand one 11 hundred two of the insurance law), to reimburse such person under such 12 circumstances to the extent that the recovered lien represent first 13 party benefits as defined in article fifty-one of the insurance law. 14 A copy of the papers to be used on the application to compromise and 15 settle the claim must be served as directed by the court or in the same 16 manner as provided in the civil practice law and rules for a notice of 17 motion upon the commissioners of the state insurance fund or such offi- 18 cer thereof designated by them or upon the person, association, corpo- 19 ration, or insurance carrier, whose written approval would have been 20 required to compromise such cause of action by the employee or his 21 dependents. This notice shall afford them the opportunity to submit 22 affidavits and to be heard by the court on the application. A petition 23 may also be filed pursuant to this subdivision allocating a portion of 24 the third-party recovery to lost wages and/or medical treatment. 25 6. [The] Except as set forth in section eleven of this article, the 26 right to compensation or benefits under this chapter, shall be the 27 exclusive remedy to an employee, or in case of death his or her depen- 28 dents, when such employee is injured or killed by the negligence or 29 wrong of another in the same employ, the employer's insurer or any 30 collective bargaining agent of the employer's employees or any employee, 31 of such insurer or such collective bargaining agent (while acting within 32 the scope of his or her employment). The limitation of liability of an 33 employer set forth in section eleven of this article for the injury or 34 death of an employee shall be applicable to another in the same employ, 35 the employer's insurer, any collective bargaining agent of the employ- 36 er's employees or any employee of the employer's insurer or such collec- 37 tive bargaining agent (while acting within the scope of his or her 38 employment). The option to maintain an action in the courts for damages 39 [based on the employer's failure to secure compensation for injured40employees and their dependents as set forth in section eleven of this41article] shall not be construed to include the right to maintain an 42 action against another in the same employ, [the employer's insurer,] any 43 collective bargaining agent of the employer's employees or any employee 44 [of the employer's insurer] or such collective bargaining agent (while 45 acting within the scope of his or her employment). 46 § 15. Subdivision 3 of section 35 of the workers' compensation law, as 47 amended by section 2 of subpart A of part NNN of chapter 59 of the laws 48 of 2017, is amended and a new subdivision 5 is added to read as follows: 49 3. Extreme hardship redetermination. In cases where the loss of wage- 50 earning capacity is greater than [seventy-five] fifty percent, a claim- 51 ant may request[, within the year prior to the scheduled exhaustion of52indemnity benefits under paragraph w of subdivision three of section53fifteen of this article], that the board reclassify the claimant to 54 permanent total disability or total industrial disability due to factors 55 reflecting extreme hardship. Extreme hardship is defined as: (a) the 56 injured worker's income from Social Security disability benefits andA. 337 24 1 disability pension (if applicable) would be less than fifty percent of 2 his or her average weekly wage upon termination of PPD benefits; or (b) 3 the injured worker will be unable to meet expenses for himself or 4 herself and any dependents upon termination of PPD benefits; or (c) 5 additional medical, functional or vocational factors arising subsequent 6 to the classification of permanent partial disability have further 7 eroded the injured worker's wage earning capacity; or (d) the injured 8 worker's income would be below the federal poverty guidelines upon 9 termination of PPD benefits. 10 5. Return to work programs. The following programs shall be developed 11 and implemented by January first, two thousand twenty-four: 12 (a) Return to work education. The board and the department of labor 13 shall develop and provide education tools and technical assistance on 14 how to build a return to work culture within an organization, partic- 15 ularly to small- and medium-sized employers. These tools shall include 16 templates of sample policies and procedural frameworks for return to 17 work programs, and illustrations of the financial benefits of effective 18 return to work protocols. In addition, the board and the department of 19 labor shall develop and implement, with input from stakeholders, an 20 education program for all participants in the workers' compensation 21 system, including employers and employees, carriers, claimants' attor- 22 neys and claims examiners, on the value and components of an effective 23 return to work program and their respective roles in assuring positive 24 return to work outcomes. 25 (b) Employer return to work policies. The board shall require a 26 formal, consistent return to work policy of all New York employers who 27 employ more than twenty-five individuals, and carriers shall provide 28 model policies for employers of fewer than twenty-five. The policy shall 29 be written and tailored to the specific needs of the employer. 30 (c) Return to work communication. The board shall redesign the forms 31 it uses to encourage and improve early and frequent outreach from the 32 employer to the injured worker, from the physician to the employer and 33 from the physician to the injured worker. These forms shall seek clearer 34 information on job duties and physical demands of a given job; ascertain 35 the extent to which physicians are communicating with the injured worker 36 about return to work; and contain information that will allow review by 37 board staff to ensure that injured workers are not needlessly delayed 38 treatment or services that could facilitate return to work. 39 (d) Improvements in the physician's role. The occupational health 40 clinics, administered by the department of health, shall develop content 41 and curriculum for a continuing medical education course on return to 42 work. The board shall improve training of physicians around return to 43 work principles. The board shall assure that physicians are compensated 44 for the time it takes to evaluate true return to work opportunities 45 within the injured worker's functional capabilities. 46 (e) Vocational rehabilitation evaluations. The board shall assure that 47 a neutral, non-medical vocational rehabilitation evaluation is provided 48 to all claimants who have not returned to work at the time they have 49 reached maximum medical improvement to determine whether their return to 50 work would be facilitated by vocational education or training. The eval- 51 uation shall be done under a standardized protocol established by the 52 board and shall be binding on all parties. The vocational assessment 53 shall be paid for by the carrier, self-insured employer or the state 54 insurance fund. Submission of the current rehabilitation form shall be 55 required, and penalties shall be imposed for the late or non-filing of 56 forms related to return to work and rehabilitation programs.A. 337 25 1 (f) Vocational rehabilitation services. The board shall assure that 2 vocational rehabilitation services are provided more expeditiously to 3 injured workers and are appropriately funded. The options available and 4 the costs shall be subject to regulation by the board. If the evaluation 5 recommends vocational education or retraining, the costs shall be 6 covered first by appropriate sources of state or federal funding. Carri- 7 ers shall not be permitted to seek a change in an injured worker's clas- 8 sification status while that individual is actively participating in 9 retraining or vocational rehabilitation in accordance with the individ- 10 ualized reemployment plan developed as a result of the vocational reha- 11 bilitation evaluation. 12 (g) Incentive programs. The board, the department, and the department 13 of financial services shall develop incentive programs targeted to 14 hiring workers who have permanent work restrictions. These programs 15 shall be established and analyzed for their impact on return to work 16 rates and cost effectiveness. Parameters for such program, at a minimum, 17 shall include those which offer employers wage subsidies for employing 18 and retraining injured workers, reimbursement for workplace accommo- 19 dations to enable injured workers to adjust the job to their capacities, 20 vocational assessments, retraining for those injured workers who cannot 21 return to their at-injury employer and funds for purchase of items that 22 are required of any new hire. Return to work programs subsidized by 23 these programs shall, at a minimum, be at eighty percent of the pre-hire 24 wage. Incentive programs shall require an employer match. 25 (h) Medical only cases. The board shall compensate attorneys for 26 representation provided in certain medical-only cases, so as to facili- 27 tate the medical care necessary for an injured worker's return to the 28 labor force. 29 (i) Workers' compensation board process issues. The board shall put in 30 place improvements and proactive approaches to return to work. It shall 31 develop procedures for promptly contacting claimants no later than one 32 hundred twenty days after injury or within two weeks of maximum medical 33 improvement to determine the feasibility of return to work. Partic- 34 ipants in the workers' compensation system, including the administrative 35 law judges, shall be educated on the importance of return to work. The 36 board shall establish a procedure to ensure that all claimants who are 37 eligible for a reduced earning award receive such award. 38 (j) Return to work for public employees. A "pay without prejudice" 39 pilot program shall be undertaken with state agencies and selected 40 public authorities and local governments to speed up appropriate medical 41 treatment to workers that sustain workplace injuries. The program shall 42 be analyzed to determine whether improvements in timeliness of medical 43 authorization results improve return to work outcomes of public employ- 44 ees. 45 § 16. The workers' compensation law is amended by adding a new section 46 59 to read as follows: 47 § 59. Financial statement and detailed claim data to be filed with the 48 board. (a) For purposes of this section, the term "insurer" means any 49 person, corporation, association or other business entity which issues a 50 policy of workers' compensation insurance. 51 (b) On or before April first of each year, every insurer shall for the 52 calendar year provide the board and the public with a detailed financial 53 statement to supplement and expand upon any other information otherwise 54 provided to the board, the department of financial services, or the New 55 York compensation insurance rating board as it relates to an insurer's 56 provision of workers' compensation insurance coverage to employers;A. 337 26 1 provided, however, that the initial financial statement so filed by an 2 insurer after the effective date of this section shall include the 3 information required in this subdivision not only for such prior calen- 4 dar year but also for the previous nine calendar years prior to such 5 report. The financial statement shall, in depth, detail: 6 (1) total premium collected; 7 (2) assessments collected; 8 (3) dividend income; 9 (4) payment of workers' compensation benefits for temporary disabili- 10 ty; 11 (5) non-scheduled permanent partial disability; 12 (6) scheduled permanent partial disability; 13 (7) permanent total disability; 14 (8) death benefits; 15 (9) medical treatment; 16 (10) payments to vendors including but not limited to: (i) independent 17 medical examination providers; (ii) investigators; (iii) nurse case 18 managers; (iv) peer reviews; (v) utilization reviews; and (vi) defense 19 litigation costs; 20 (11) number of open claims at the time such statement is prepared; 21 (12) other expenses by category as determined by the board to reflect 22 the cost to the insurer to provide such coverage; 23 (13) investment income realized from that portion of the premium paid 24 for a policy providing such coverage; 25 (14) lien recoveries pursuant to section twenty-nine of this chapter; 26 (15) credits or offsets obtained pursuant to section twenty-nine of 27 this chapter; and 28 (16) credits, premium reductions, experience modifications or other 29 benefits provided to insured employers as a result of lien recoveries 30 and credits obtained pursuant to section twenty-nine of this chapter. 31 (c) The board shall, in both written form and as part of the agency 32 website, make such financial statements and detailed claim information 33 available to the public. The detailed claim information shall be 34 provided in aggregate form for all insurers and separated by specific 35 insurer, combined without any identification of a specific claim to a 36 specific insurer. None of the publicly available detailed claim informa- 37 tion shall identify the individual insurer, employer or employee, or 38 representative of the same, associated with the claim. Such financial 39 statements and detailed claim information shall be deemed a public docu- 40 ment and no person shall be required to file a request for such finan- 41 cial statements pursuant to article six of the public officers law in 42 order to receive a copy thereof, but upon request and payment of the fee 43 for copying such document, it shall be provided forthwith. With respect 44 to the electronic copy of such financial statements and detailed claim 45 information, which shall be accessible on the board's website, the board 46 shall highlight the availability of such information to the public on 47 such website, and the link to each insurer's financial statement and the 48 aggregated detailed claim information shall be accessible in a simple 49 and easy manner. Both the financial statement and aggregated detailed 50 claim information on the board's website shall be available in spread- 51 sheet format, in addition to any other format the chair determines is 52 appropriate. Where summaries are included, they shall be written in 53 plain and simple English so that the public at large can easily compre- 54 hend the data provided. 55 (d) On or before July first of each year, the chair shall issue 56 reports summarizing and explaining the information collected from theA. 337 27 1 financial statements and the detailed claim information and summarizing 2 the cost and other essential elements relevant to providing workers' 3 compensation insurance coverage. Copies of such reports shall be 4 forwarded to the temporary president of the senate, the speaker of the 5 assembly and the chairs of the senate and assembly insurance committees. 6 Such reports shall be public documents and shall be accessible both in 7 paper copy and on the board's website in a similar fashion as provided 8 for in subsection (c) of this subdivision. 9 (e) Where an insurer fails or refuses to provide the board with a full 10 and complete disclosure as required by this section, the chair shall 11 take such action he or she deems necessary to bring the insurer into 12 full compliance. Such action may include imposition of a civil penalty 13 of up to fifty thousand dollars assessed against the insurer for each 14 violation, temporary suspension of any right to issue additional poli- 15 cies or contracts until the insurer brings itself into full compliance, 16 an audit of the insurer's records by the department of financial 17 services or its designated representative to obtain the information and 18 which audit shall be paid for by the insurer, or any other civil remedy 19 the chair deems warranted or necessary until such insurer fully 20 complies. In addition the officer whose signature is affixed to such 21 statement may be personally penalized to the same extent. 22 (f) The board may promulgate such rules and regulations it deems 23 necessary for the proper administration of the provisions of this 24 section, and such rules and regulations may be promulgated on an emer- 25 gency basis if the chair warrants such action to be necessary. 26 (g) If any part of this section, or the application thereof to any 27 person or circumstances shall be held to be invalid, such holding shall 28 not affect, impair or invalidate the remainder of this act but it shall 29 be confined in its operation to the item, clause, sentence, subpara- 30 graph, subdivision or other part of this act directly involved in such 31 holding, or to the person and circumstances therein involved. 32 § 17. The workers' compensation law is amended by adding a new section 33 112-a to read as follows: 34 § 112-a. Audits of employers. 1. (a) Employers in all classes other 35 than the construction class shall be audited not less frequently than 36 biennially and the chair or board may provide for more frequent audits 37 of employers in specified classifications based on factors such as 38 amount of premium, type of business, loss ratios, or other relevant 39 factors. In no event shall employers in the construction class, generat- 40 ing more than the amount of premium required to be experience rated, be 41 audited less frequently than annually. The annual audits required for 42 construction classes may be a physical, onsite review of original 43 payroll records, employee records, checkbooks, cash book (disbursements 44 and receipts), general ledger, contracts, tax returns including quarter- 45 ly payroll filings, and original certificates of insurance. The audit of 46 all employers shall be conducted no more than one hundred twenty days 47 after the expiration of a policy period. At the completion of an audit, 48 if requested by the auditor, the employer or officer of the corporation 49 must print and sign their names on the audit document affirming the 50 accuracy of the information provided therein. As required by section one 51 hundred twelve of this article, employers shall make available all books 52 and records necessary for the payroll verification audit and permit the 53 auditor to make a physical inspection of the employer's operation. If 54 an employer fails to provide reasonable access to all such books and 55 records necessary for a payroll verification audit, including a physical 56 inspection of the employer's operation, the employer shall pay aA. 337 28 1 surcharge to the carrier of two times the most recent estimated annual 2 premium. 3 (b) Employers that fail to provide reasonable access to the carrier 4 for the purpose of conducting an audit shall be reported to the New York 5 compensation insurance rating board. 6 (c) If an employer knowingly understates or knowingly conceals 7 payroll, knowingly misrepresents or knowingly conceals employee duties 8 so as to avoid proper classification for premium calculations, or know- 9 ingly misrepresents or knowingly conceals information pertinent to the 10 computation and application of an experience rating modification factor, 11 said knowing misrepresentations or knowing concealments shall be consid- 12 ered fraudulent practices in violation of applicable provisions of 13 section one hundred fourteen of this article and insurance fraud in 14 violation of applicable provisions of section 176.05 of the penal law. 15 (d) If during the course of an audit conducted under this section, an 16 insurance carrier obtains information indicating a violation of the 17 provisions of paragraph (c) of this subdivision, then the carrier shall 18 report such information to the board. 19 2. This section shall not apply to employers that self-insure or 20 employers that are members of a workers' compensation group self-insured 21 trust. 22 3. For the purposes of this section, "construction class" means the 23 work or occupation described in "Group 3" of subdivision one of section 24 three of this chapter. 25 § 18. Subdivision 1 of section 117 of the workers' compensation law, 26 as amended by chapter 17 of the laws of 1984, is amended to read as 27 follows: 28 1. The board may adopt reasonable rules consistent with and supple- 29 mental to the provisions of this chapter and the labor law. The chairman 30 may make reasonable regulations consistent with the provisions of this 31 chapter and the labor law. The board may not utilize "subject numbers", 32 forms or other informal communications outside of its rules, regulations 33 or decisions to interpret or apply the law. 34 § 19. The opening paragraph and second undesignated paragraph of 35 section 120 of the workers' compensation law, the opening paragraph as 36 amended by chapter 105 of the laws of 2019, and the second undesignated 37 paragraph as amended by chapter 61 of the laws of 1989, are amended to 38 read as follows: 39 It shall be unlawful for any employer or his or her duly authorized 40 agent to discharge, threaten, penalize, or fail to reinstate pursuant to 41 section two hundred three-b of this chapter, or in any other manner 42 discriminate or retaliate against an employee as to his or her employ- 43 ment (i) because such employee has claimed or attempted to claim compen- 44 sation from such employer, requested a claim form for injuries received 45 in the course of employment, or claimed or attempted to claim any bene- 46 fits provided under this chapter [or], (ii) because such employer 47 believes that such employee has claimed or will claim compensation; 48 (iii) because such employee has caused to be instituted or is about to 49 institute a claim for compensation or other benefit under this chapter; 50 (iv) because he or she has testified or is about to testify in a 51 proceeding under this chapter [and no other valid reason is shown to52exist for such action by the employer]; or (v) because such employee has 53 otherwise exercised rights protected under this chapter. For purposes of 54 this provision, "because" shall be interpreted to require that the list- 55 ed activity was at least a contributing factor to the employer's action.A. 337 29 1 Any complaint alleging such an unlawful discriminatory practice must 2 be filed within two years of the commission of such practice. Upon find- 3 ing that an employer has violated this section, the board shall make an 4 order that any employee so discriminated against shall be restored to 5 employment or otherwise restored to the position or privileges he or she 6 would have had but for the discrimination and shall be compensated by 7 his or her employer for any loss of compensation arising out of such 8 discrimination together with such fees or allowances for services 9 rendered by an attorney or licensed representative as fixed by the 10 board. Any employer who violates this section shall be liable to a 11 penalty of not less than one [hundred] thousand dollars or more than 12 [five hundred] ten thousand dollars, as may be determined by the board. 13 All such penalties shall be paid [into the state treasury] to the 14 employee so discriminated against. All penalties, compensation and fees 15 or allowances shall be paid solely by the employer. The employer alone 16 and not his or her carrier shall be liable for such penalties and 17 payments. Any provision in an insurance policy undertaking to relieve 18 the employer from liability for such penalties and payments shall be 19 void. 20 § 20. Paragraphs (a) and (b) of subdivision 1, subdivision 7 and 21 subdivision 11 of section 137 of the workers' compensation law, as added 22 by chapter 473 of the laws of 2000, are amended to read as follows: 23 (a) A copy of each report of independent medical examination on behalf 24 of an employer or carrier shall be submitted by the practitioner on the 25 same day and in the same manner to the board, the insurance carrier, the 26 claimant's attending physician or other attending practitioner, the 27 claimant's representative and the claimant. 28 (b) If a practitioner who has performed or will be performing an inde- 29 pendent medical examination of a claimant on behalf of an employer or 30 carrier receives a request for information regarding the claimant, 31 including faxed or electronically transmitted requests, the practitioner 32 shall submit a copy of the request for information to the board within 33 ten days of receipt of the request. Nothing in this subdivision shall be 34 construed to abrogate the attorney-client privilege. 35 7. The claimant shall receive notice by mail of the scheduled inde- 36 pendent medical examination on behalf of an employer or carrier at least 37 seven business days prior to such examination. Such notice shall advise 38 the claimant if the practitioner intends to record or video tape the 39 examination, and shall advise the claimant of their right to video tape 40 or otherwise record the examination. Claimants shall be advised of their 41 right to be accompanied during the exam by an individual or individuals 42 of their choosing. 43 11. At the time of the independent medical examination on behalf of an 44 employer or carrier the claimant shall receive a notice from the entity 45 performing the independent medical examination, on a form which shall be 46 approved and promulgated by the chair, stating the rights and obli- 47 gations of the claimant and the practitioner with respect to such exam, 48 and such notice shall include but not be limited to a statement that the 49 claimant's receipt of benefits could be denied, terminated, or reduced 50 as a result of a determination which may be based upon the medical eval- 51 uation made after such independent medical examination, and the claim- 52 ant's rights to challenge or appeal such a determination. 53 § 21. The workers' compensation law is amended by adding a new section 54 208-a to read as follows: 55 § 208-a. Cost-of-living adjustments of disability benefits in certain 56 cases. 1. Notwithstanding any other provision of law, effective JulyA. 337 30 1 first, two thousand twenty-four, in addition to any other amount 2 received pursuant to this article as disability benefits, an employee 3 with a permanent total disability or the beneficiary-dependent of such 4 employee shall be entitled to an additional allowance, to be known as a 5 cost-of-living adjustment allowance, payable annually. 6 2. The cost-of-living adjustment allowance shall be computed by apply- 7 ing an adjustment for regional costs of living and shall be based on 8 fifty percent of the annual increase in the consumer price index as 9 promulgated by the United States department of labor. 10 § 22. This act shall take effect immediately; provided, however, that 11 if chapter 27 of the laws of 2022 has not taken effect then the amend- 12 ments made to section 24 of the workers' compensation law made by 13 section 11 of this act shall take effect on the same date and in the 14 same manner as chapter 27 of the laws of 2022, takes effect.
