Bill Text: NY A03418 | 2025-2026 | 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 2-0)
Status: (Introduced) 2025-01-27 - referred to labor [A03418 Detail]
Download: New_York-2025-A03418-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 3418 2025-2026 Regular Sessions IN ASSEMBLY January 27, 2025 ___________ Introduced by M. of A. BRONSON, 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. Subdivision 1 of section 11 of the workers' compensation 2 law, as amended by chapter 835 of the laws of 2022, is amended to read 3 as follows: 4 1. (a) The liability of an employer prescribed by the last preceding 5 section shall be exclusive and in place of any other liability whatsoev- 6 er, to such employee, [his or her] such employee's personal represen- 7 tatives, spouse, parents, dependents, distributees, or any person other- 8 wise entitled to recover damages, contribution or indemnity, at common 9 law or otherwise, on account of such injury or death or liability aris- 10 ing therefrom, except [that if an] in the following events: (i) the 11 employer's violation of an applicable statute or regulation involving 12 workplace safety was a proximate cause of the employee's injury or 13 death; (ii) the employee's benefits have been terminated pursuant to 14 paragraph w of subdivision three of section fifteen of this article; or 15 (iii) the employer fails to secure the payment of compensation for [his16or her] such employer's injured employees and their dependents as 17 provided in section fifty of this chapter. In such events, an injured 18 employee, or [his or her] such employee's legal representative in case 19 of death results from the injury, may, at [his or her] such employee's 20 option, elect to claim compensation under this chapter, or to maintain 21 an action in the courts for damages on account of such injury[; and in22such an action it shall not be necessary to plead or prove freedom fromEXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD00318-01-5A. 3418 2 1contributory negligence nor may the defendant plead as a defense that2the injury was caused by the negligence of a fellow servant nor that the3employee assumed the risk of his or her employment, nor that the injury4was due to the contributory negligence of the employee] where an action 5 is brought pursuant to the employee's benefits being terminated pursuant 6 to paragraph w of subdivision three of section fifteen of this article, 7 any applicable statute of limitations shall be tolled from the date of 8 injury until the date the employee's benefits are terminated. The 9 employer shall be entitled to take credit for compensation paid under 10 this chapter against any damages awarded in an action brought in the 11 courts for damages. The liability under this chapter of The New York 12 Jockey Injury Compensation Fund, Inc. created under section two hundred 13 twenty-one of the racing, pari-mutuel wagering and breeding law shall be 14 limited to the provision of workers' compensation coverage to jockeys, 15 apprentice jockeys, exercise persons, and at the election of the New 16 York Jockey Injury Compensation Fund, Inc., with the approval of the New 17 York state gaming commission, employees of licensed trainers or owners 18 licensed under article two or four of the racing, pari-mutuel wagering 19 and breeding law and any statutory penalties resulting from the failure 20 to provide such coverage. 21 (b) For purposes of this section the terms "indemnity" and "contrib- 22 ution" shall not include a claim or cause of action for contribution or 23 indemnification based upon a provision in a written contract entered 24 into prior to the accident or occurrence by which the employer had 25 expressly agreed to contribution to or indemnification of the claimant 26 or person asserting the cause of action for the type of loss suffered. 27 (c) An employer shall not be liable for contribution or indemnity to 28 any third person based upon liability for injuries sustained by an 29 employee acting within the scope of [his or her] such employee's employ- 30 ment for such employer unless such third person proves through competent 31 medical evidence that such employee has sustained a "grave injury" which 32 shall mean only one or more of the following: death, permanent and total 33 loss of use or amputation of an arm, leg, hand or foot, loss of multiple 34 fingers, loss of multiple toes, paraplegia or quadriplegia, total and 35 permanent blindness, total and permanent deafness, loss of nose, loss of 36 ear, permanent and severe facial disfigurement, loss of an index finger 37 or an acquired injury to the brain caused by an external physical force 38 resulting in permanent total disability. 39 (d) For purposes of this section "person" means any individual, firm, 40 company, partnership, corporation, joint venture, joint-stock associ- 41 ation, association, trust or legal entity. 42 (e) The liability under this chapter of the New York black car opera- 43 tors' injury compensation fund, inc. shall be limited to: (i) securing 44 the payment of workers' compensation in accordance with article six-F of 45 the executive law to black car operators, as defined in such article, 46 whose injury arose out of and in the course of providing services for a 47 central dispatch facility, as defined in such article, that is a regis- 48 tered member of such fund, and (ii) any statutory penalty resulting from 49 the failure to secure such payment. The liability under this chapter of 50 a central dispatch facility, as defined in article six-F of the execu- 51 tive law, that is a registered member of the New York black car opera- 52 tors' injury compensation fund, inc. that shall be limited to remaining 53 a registered member in good standing of such fund and any statutory 54 penalty, including loss of immunity provided by this section, resulting 55 from the failure to become or remain a registered member in good stand- 56 ing of such fund, except, however, that such central dispatch facilityA. 3418 3 1 shall be subject to the provisions of section one hundred thirty-one of 2 this chapter and shall be liable for any payments for which it may 3 become responsible pursuant to such section or pursuant to section four- 4 teen-a of this article. 5 (f) The liability under this chapter of the New York independent 6 livery driver benefit fund, inc. shall be limited to: (i) securing the 7 payment of workers' compensation coverage to cover those matters 8 required by article six-G of the executive law for independent livery 9 drivers, as defined in such article, whose injury arose out of and in 10 the course of providing covered services for a livery base, as defined 11 in such article, that is a registered member of such fund, and (ii) any 12 statutory penalty resulting from the failure to secure such payment. 13 § 2. Section 12 of the workers' compensation law is REPEALED. 14 § 3. Subdivisions (a), (b) and (g) of section 13 of the workers' 15 compensation law, subdivision (a) as amended by chapter 6 of the laws of 16 2007, the opening paragraph of subdivision (a) as amended by chapter 23 17 of the laws of 2016, subdivision (b) as amended by chapter 113 of the 18 laws of 1946 and subdivision (g) as separately amended by chapters 834 19 and 922 of the laws of 1990, are amended to read as follows: 20 (a) The employer shall promptly provide for an injured employee such 21 medical, dental, surgical, optometric or other attendance or treatment, 22 nurse and hospital service, medicine, optometric services, crutches, 23 eye-glasses, false teeth, artificial eyes, orthotics, prosthetic 24 devices, functional assistive and adaptive devices and apparatus for 25 such period as the nature of the injury or the process of recovery may 26 require. The employer shall be liable for the payment of the expenses of 27 medical, dental, surgical, optometric or other attendance or treatment, 28 nurse and hospital service, medicine, optometric services, crutches, 29 eye-glasses, false teeth, artificial eyes, orthotics, prosthetic 30 devices, functional assistive and adaptive devices and apparatus, as 31 well as artificial members of the body or other devices or appliances 32 necessary in the first instance to replace, support or relieve a portion 33 or part of the body resulting from and necessitated by the injury of an 34 employee, for such period as the nature of the injury or the process of 35 recovery may require, and the employer shall also be liable for replace- 36 ments or repairs of such artificial members of the body or such other 37 devices, eye-glasses, false teeth, artificial eyes, orthotics, prosthet- 38 ic devices, functional assistive and adaptive devices or appliances 39 necessitated by ordinary wear or loss or damage to a prosthesis, with or 40 without bodily injury to the employee. Damage to or loss of a prosthetic 41 device shall be deemed an injury except that no disability benefits 42 shall be payable with respect to such injury under section fifteen of 43 this article. Such a replacement or repair of artificial members of the 44 body or such other devices, eye-glasses, false teeth, artificial eyes, 45 orthotics, prosthetic devices, functional assistive and adaptive devices 46 or appliances or the providing of medical treatment and care as defined 47 herein shall not constitute the payment of compensation under section 48 twenty-five-a of this article. All fees and other charges for such 49 treatment and services shall be limited to such charges as prevail in 50 the same community for similar treatment of injured persons of a like 51 standard of living. 52 The chair shall [prepare and] establish a committee to determine the 53 schedule for the state, or schedules limited to defined localities, of 54 charges and fees for such medical treatment and care, and including all 55 medical, dental, surgical, optometric or other attendance or treatment, 56 nurse and hospital service, medicine, optometric services, crutches,A. 3418 4 1 eye-glasses, false teeth, artificial eyes, orthotics, prosthetic 2 devices, functional assistive and adaptive devices and apparatus [in3accordance with and to be subject to change pursuant to rules promulgat-4ed by the chair. Before preparing such schedule for the state or sched-5ules for limited localities the chair shall request]. The members of the 6 committee shall be the president of the medical society of the state of 7 New York [and], the president of the New York state osteopathic medical 8 society [to submit to him or her a report on], the president of the New 9 York state society of orthopedists, the president of the New York state 10 AFL/CIO, the president of the business council of the state of New York, 11 an individual designated by the senate majority leader, an individual 12 designated by the speaker of the assembly, and the chair of the board. 13 The committee shall meet annually in order to determine the amount of 14 remuneration deemed [by such society] to be fair and adequate for the 15 types of medical care to be rendered under this chapter, but consider- 16 ation shall be given to the view of other interested parties. In the 17 case of physical therapy fees schedules the chair shall request the 18 president of a recognized professional association representing physical 19 therapists in the state of New York to submit to [him or her] the 20 committee a report on the amount of remuneration deemed by such associ- 21 ation to be fair and reasonable for the type of physical therapy 22 services rendered under this chapter, but consideration shall be given 23 to the views of other interested parties. The chair shall also prepare 24 and establish a schedule for the state, or schedules limited to defined 25 localities, of charges and fees for outpatient hospital services not 26 covered under the medical fee schedule previously referred to in this 27 subdivision, to be determined in accordance with and to be subject to 28 change pursuant to rules promulgated by the chair. Before preparing such 29 schedule for the state or schedules for limited localities the chair 30 shall request the president of the hospital association of New York 31 state to submit to [him or her] the committee a report on the amount of 32 remuneration deemed by such association to be fair and adequate for the 33 types of hospital outpatient care to be rendered under this chapter, but 34 consideration shall be given to the views of other interested parties. 35 In the case of occupational therapy fees schedules the chair shall 36 request the president of a recognized professional association repres- 37 enting occupational therapists in the state of New York to submit to 38 [him or her] the committee a report on the amount of remuneration deemed 39 by such association to be fair and reasonable for the type of occupa- 40 tional therapy services rendered under this chapter, but consideration 41 shall be given to the views of other interested parties. The amounts 42 payable by the employer for such treatment and services shall be the 43 fees and charges established by such schedule. Nothing in this sched- 44 ule, however, shall prevent voluntary payment of amounts higher or lower 45 than the fees and charges fixed therein, but no physician rendering 46 medical treatment or care, and no physical or occupational therapist 47 rendering their respective physical or occupational therapy services may 48 receive payment in any higher amount unless such increased amount has 49 been authorized by the employer, or by decision as provided in section 50 thirteen-g of this article. Nothing in this section shall be construed 51 as preventing the employment of a duly authorized physician on a salary 52 basis by an authorized compensation medical bureau or laboratory. 53 (b) In the case of persons, injured or residing and receiving medical 54 treatment outside of this state, but entitled to compensation or bene- 55 fits under this chapter, the provisions as to selection of authorized 56 physicians and the rules and regulations of the board governing medicalA. 3418 5 1 treatment within the state shall be inapplicable. In such cases the 2 employer shall promptly provide all necessary medical treatment and care 3 but if the employer [fail] fails to provide the same, after request by 4 the injured employee such injured employee may do so at the expense of 5 the employer. The employee shall not be entitled to recover any amount 6 expended by [him] such employee for such treatment or services unless 7 [he] such employee shall have requested the employer to furnish the same 8 and the employer shall have refused or neglected to do so, or unless the 9 nature of the injury required such treatment and services and the 10 employer or [his] such employer's superintendent or [foreman] foreperson 11 having knowledge of such injury shall have neglected to provide the 12 same; nor shall any claim for medical or surgical treatment be valid and 13 enforceable, as against such employer, unless within twenty days follow- 14 ing the first treatment, the physician giving such treatment, furnish to 15 the employer and the [chairman] chairperson a report of such injury and 16 treatment, on a form prescribed by the [chairman] chairperson. The 17 board may, however, by the unanimous vote of a panel of not less than 18 three members qualified to act, excuse the failure to give such notice 19 within twenty days when it finds it to be in the interest of justice to 20 do so, and may, subject to the limitations contained in section twenty- 21 eight of this [chapter] article, make an award for the reasonable value 22 of such medical or surgical treatment. All fees and other charges for 23 such treatment and services, whether furnished by the employer or other- 24 wise, shall be subject to regulation by the board as provided in section 25 twenty-four of this [chapter] article, and shall be limited to such 26 charges as prevail in the same community for similar treatment of 27 injured persons of a like standard of living. 28 (g) Every hospital operating in the state shall, within twenty days of 29 receiving a written request by a claimant, claimant's representative, 30 employer, carrier or special fund created under this chapter, provide to 31 such claimant, claimant's representative, employer, carrier or special 32 fund for use in board proceedings the medical records of an employee who 33 has received treatment in such hospital and who is claiming benefits 34 under this chapter. Each hospital shall designate at least one officer 35 or employee who shall be responsible for provision of such records on 36 written request, and to whom the board, claimant, claimant's, employer, 37 carrier representative or special fund may address informal inquiries 38 regarding provision of such records. 39 No hospital shall be required to produce the records of any claimant 40 pursuant to this section without receiving the cost of copying such 41 records as determined by the chair. Such cost shall be paid by the 42 requesting party except that the employer or carrier or special fund 43 shall reimburse a claimant or claimant's representative the cost of an 44 initial set of such records where the request is made by a claimant or 45 claimant's representative. Should the hospital not be able to provide 46 the requested records within twenty days, they shall notify in writing 47 the party requesting the records of the reason why the records were not 48 provided and the date on which they will be provided. Such date shall be 49 within a reasonable period of time, but shall not exceed thirty days. 50 Failure to either provide the records within twenty days or to provide a 51 reason why the records have not been provided shall subject the hospital 52 to a fine of two hundred dollars which shall be imposed by the chair 53 payable to the board upon finding that this subdivision has not been 54 complied with. No hospital shall be required to produce the records of 55 any claimant without receiving its customary fees or charges for reprod- 56 uction of such records. The employer or carrier shall file with theA. 3418 6 1 board any hospital or medical records concerning an injured worker that 2 come into its possession and have not been previously filed with the 3 board. 4 § 4. Paragraphs (d), (e) and the closing paragraph of subdivision 4 5 and subdivision 5 of section 13-a of the workers' compensation law, 6 paragraphs (d), (e) and the closing paragraph of subdivision 4 as 7 amended by chapter 473 of the laws of 2000 and subdivision 5 as amended 8 by section 8 of part CC of chapter 55 of the laws of 2019, are amended 9 to read as follows: 10 (d) The independent medical examiner on behalf of the employer or 11 carrier shall provide such reports and shall submit to investigation as 12 required by the chair. 13 (e) In order to qualify as admissible medical evidence, for purposes 14 of adjudicating any claim under this chapter, any report submitted to 15 the board by an independent medical examiner on behalf of the employer 16 or carrier licensed by the state of New York shall include the follow- 17 ing: 18 (i) a signed statement certifying that the report is a full and truth- 19 ful representation of the independent medical examiner's professional 20 opinion with respect to the claimant's condition[:]; 21 (ii) such examiner's board issued authorization number; 22 (iii) the name of the individual or entity requesting the examination; 23 (iv) if applicable, the registration number as required by section 24 thirteen-n of this article; and 25 (v) such other information as the chair may require by regulation. 26 Any report by an independent medical examiner on behalf of the employ- 27 er or carrier who is not authorized, and who performs an independent 28 medical examination in accordance with paragraph (c) of this subdivi- 29 sion, which is to be used as medical evidence under this chapter, shall 30 include in the report such information as the chair may require by regu- 31 lation. 32 (5) No claim for specialist consultations, surgical operations, 33 physiotherapeutic or occupational therapy procedures, x-ray examinations 34 or special diagnostic laboratory tests costing more than one thousand 35 dollars shall be valid and enforceable, as against such employer, unless 36 such special services shall have been authorized by the employer or by 37 the board, or unless such authorization has been unreasonably withheld, 38 or withheld for a period of more than thirty calendar days from receipt 39 of a request for authorization, or unless such special services are 40 required in an emergency, provided, however, that the basis for a denial 41 of such authorization by the employer must be based on a conflicting 42 second opinion rendered by a physician authorized by the board. The 43 board, with the approval of the superintendent of financial services, 44 shall issue and maintain a list of pre-authorized procedures under this 45 section, which shall not be used to deny medical treatment that varies 46 from such list or which occurs outside of the state. Such list of pre- 47 authorized procedures shall be issued and maintained for the purpose of 48 expediting authorization of treatment of injured workers. Such list of 49 pre-authorized procedures shall not prohibit varied treatment when the 50 treating provider demonstrates the appropriateness and medical necessity 51 of such treatment. 52 § 5. Subdivision 1 of section 13-f of the workers' compensation law, 53 as amended by chapter 353 of the laws of 1990, is amended to read as 54 follows: 55 (1) Fees for medical services shall be payable only to a physician or 56 other qualified person permitted by sections thirteen-b, thirteen-k,A. 3418 7 1 thirteen-l and thirteen-m of this [chapter] article or other authorized 2 provider of health care under the education law or the public health law 3 permitted to render medical care or treatment under this chapter, or to 4 the agent, executor or administrator of the estate of such physician or 5 such other qualified person. Except as provided in section thirteen-d 6 of this [chapter] article, no provider of health care rendering medical 7 care or treatment to a compensation claimant, shall collect or receive a 8 fee from such claimant within this state, but shall have recourse for 9 payment of services rendered only to the employer under the provisions 10 of this chapter. Where an issue arises regarding a medical fee, a 11 provider of health care shall have the rights provided by sections twen- 12 ty and twenty-three of this article. Any compensation claimant who pays 13 a fee to a provider of health care for medical care or treatment under 14 this chapter shall have a cause of action against such provider of 15 health care for the recovery of the money paid, which cause of action 16 may be assigned to the chair in trust for the assigning claimant. All 17 such assignments shall run to the chair. The chair may sue the physi- 18 cian, or other authorized provider of health care as herein described on 19 the assigned cause of action with the benefits and subject to the 20 provisions of existing law applying to such actions by the claimant 21 [himself or herself] themself. Hospitals shall not be entitled to 22 receive the remuneration paid to physicians on their staff for medical 23 and surgical services. 24 § 6. Subdivisions 1, 2, paragraphs s, t, v and w of subdivision 3, 25 subdivisions 4, 4-a and 5 of section 15 of the workers' compensation 26 law, subdivision 1 as amended by chapter 675 of the laws of 1977, subdi- 27 vision 2 as amended by chapter 161 of the laws of 1966, paragraph s of 28 subdivision 3 as amended by chapter 204 of the laws of 1988, paragraph t 29 of subdivision 3 as amended by chapter 774 of the laws of 1945, subpara- 30 graphs 1 and 2 of paragraph t of subdivision 3 as amended by chapter 924 31 of the laws of 1990, paragraph v of subdivision 3 as amended by chapter 32 364 of the laws of 1989, paragraph w of subdivision 3 as amended by 33 section 1 of subpart A of part NNN of chapter 59 of the laws of 2017, 34 subdivision 4 as amended by chapter 168 of the laws of 1979, subdivision 35 4-a as amended by chapter 712 of the laws of 1941, and subdivision 5 as 36 amended by chapter 161 of the laws of 1966, are amended and a new subdi- 37 vision 10 is added to read as follows: 38 1. Permanent total disability. In case of total disability adjudged to 39 be permanent sixty-six and two-thirds per centum of the average weekly 40 wages shall be paid to the employee during the continuance of such total 41 disability. Loss of both hands, or both arms, or both feet, or both 42 legs, or both eyes, or of any two thereof, or inability to perform the 43 full range of sedentary work, or approval for federal social security 44 disability benefits as a result of the compensable accident or occupa- 45 tional disease shall, in the absence of conclusive proof to the contra- 46 ry, constitute permanent total disability. In all other cases permanent 47 total disability shall be determined in accordance with the facts. 48 Notwithstanding any other provision of this chapter, an injured employee 49 disabled due to the loss or total loss of use of both eyes, or both 50 hands, or both arms, or both feet, or both legs, or of any two thereof 51 shall not suffer any diminution of [his] such employee's compensation by 52 engaging in business or employment provided [his] such employee's earn- 53 ings or wages, when combined with [his] such employee's compensation, 54 shall not be in excess of the wage base on which the maximum weekly 55 compensation benefit is computed under the law in effect at time of such 56 earning; further provided, that if the combination exceeds such wageA. 3418 8 1 base, the compensation shall be diminished to an amount which, together 2 with [his] such employee's earnings or wages, shall equal the wage base; 3 and further provided that the application of this subdivision shall not 4 result in reduction of compensation which an injured employee who is 5 disabled due to the loss or total loss of use of both eyes, or both 6 hands, or both arms, or both feet, or both legs or of any two thereof, 7 would otherwise be entitled to under any other provision of this 8 section. 9 2. Temporary total disability. In case of temporary total disability, 10 which shall consist of the injured employee's inability to perform such 11 employee's at-injury employment or any modified employment offered by 12 the employer that is consistent with the employee's disability, sixty- 13 six and two-thirds per centum of the average weekly wages shall be paid 14 to the employee during the continuance thereof, except as otherwise 15 provided in this chapter. 16 s. Partial loss or partial loss of use. Compensation for permanent 17 partial loss or loss of use of a member [may] shall be for proportionate 18 loss or loss of use of the member. Compensation for permanent partial 19 loss or loss of use of an eye shall be awarded on the basis of uncor- 20 rected loss of vision or corrected loss of vision resulting from an 21 injury whichever is the greater. 22 t. Disfigurement. 1. The board may award proper and equitable compen- 23 sation for serious facial or head disfigurement, not to exceed [twenty] 24 thirty thousand dollars, including a disfigurement continuous in length 25 which is partially in the facial area and also extends into the neck 26 region as described in [paragraph] subparagraph two [hereof] of this 27 paragraph. 28 2. The board, if in its opinion the earning capacity of an employee 29 has been or may in the future be impaired, may award compensation for 30 any serious disfigurement in the region above the sterno clavicular 31 articulations anterior to and including the region of the sterno cleido 32 mastoid muscles on either side, but no award under subdivisions one and 33 two of this section shall, in the aggregate, exceed [twenty] thirty 34 thousand dollars. 35 3. Notwithstanding any other provision hereof, two or more serious 36 disfigurements, not continuous in length, resulting from the same inju- 37 ry, if partially in the facial area and partially in the neck region as 38 described in [paragraph] subparagraph two [hereof] of this paragraph, 39 shall be deemed to be a facial disfigurement. 40 v. Additional compensation for impairment of wage earning capacity in 41 certain permanent partial disabilities. Notwithstanding any other 42 provision of this subdivision, additional compensation shall be payable 43 for impairment of wage earning capacity for any period after the termi- 44 nation of an award under paragraphs a, b, c, or d, of this subdivision 45 for the loss or loss of use of [fifty] forty per centum or more of a 46 member, provided such impairment of earning capacity shall be due solely 47 thereto. Such additional compensation shall be determined in accordance 48 with paragraph w of this subdivision, but shall not cease until the date 49 the disabled employee receives or is entitled to receive old-age insur- 50 ance benefits under the social security act. The additional compensation 51 shall be reduced by fifty per centum of any amount of disability bene- 52 fits which the disabled employee is receiving or entitled to receive for 53 the same period under the social security act, [and shall cease on the54date the disabled employee receives or is entitled to receive old-age55insurance benefits under the social security act]. As soon as practica- 56 ble after the injury, the worker shall be required to participate in aA. 3418 9 1 board approved rehabilitation program; or shall have demonstrated coop- 2 eration with efforts to institute such a board approved program and 3 shall have been determined by the board not to be a feasible candidate 4 for rehabilitation; such rehabilitation shall constitute treatment and 5 care as provided in this chapter. 6 w. Other cases. In all other cases of permanent partial disability, 7 the compensation shall be sixty-six and two-thirds percent of the 8 difference between the injured employee's average weekly wages and [his9or her] such employee's wage-earning capacity thereafter in the same 10 employment or otherwise. Nothing in this paragraph shall preclude the 11 payment of compensation under paragraphs a through t of this subdivi- 12 sion, however, the employer or carrier shall be entitled to take credit 13 for any payment of compensation under such paragraphs a through t 14 against a payment of compensation under this paragraph. Compensation 15 under this paragraph shall be payable during the continuance of such 16 permanent partial disability, without the necessity for the claimant who 17 is entitled to benefits at the time of classification to demonstrate 18 ongoing attachment to the labor market, but subject to reconsideration 19 of the degree of such impairment by the board on its own motion or upon 20 application of any party in interest however, all compensation payable 21 under this paragraph shall not exceed (i) five hundred twenty-five weeks 22 in cases in which the loss of wage-earning capacity is greater than 23 ninety-five percent; (ii) five hundred weeks in cases in which the loss 24 of wage-earning capacity is greater than ninety percent but not more 25 than ninety-five percent; (iii) four hundred seventy-five weeks in cases 26 in which the loss of wage-earning capacity is greater than eighty-five 27 percent but not more than ninety percent; (iv) four hundred fifty weeks 28 in cases in which the loss of wage-earning capacity is greater than 29 eighty percent but not more than eighty-five percent; (v) four hundred 30 twenty-five weeks in cases in which the loss of wage-earning capacity is 31 greater than seventy-five percent but not more than eighty percent; (vi) 32 four hundred weeks in cases in which the loss of wage-earning capacity 33 is greater than seventy percent but not more than seventy-five percent; 34 (vii) three hundred seventy-five weeks in cases in which the loss of 35 wage-earning capacity is greater than sixty percent but not more than 36 seventy percent; (viii) three hundred fifty weeks in cases in which the 37 loss of wage-earning capacity is greater than fifty percent but not more 38 than sixty percent; (ix) three hundred weeks in cases in which the loss 39 of wage-earning capacity is greater than forty percent but not more than 40 fifty percent; (x) two hundred seventy-five weeks in cases in which the 41 loss of wage-earning capacity is greater than thirty percent but not 42 more than forty percent; (xi) two hundred fifty weeks in cases in which 43 the loss of wage-earning capacity is greater than fifteen percent but 44 not more than thirty percent; and (xii) two hundred twenty-five weeks in 45 cases in which the loss of wage-earning capacity is fifteen percent or 46 less. For a claimant with a date of accident or disablement after the 47 effective date of [the] section one of subpart A of part NNN of chapter 48 59 of the laws of two thousand seventeen [that amended this subdivi-49sion], where the carrier or employer has provided compensation pursuant 50 to subdivision five of this section beyond one hundred thirty weeks from 51 the date of accident or disablement, all subsequent weeks in which 52 compensation was paid shall be considered to be benefit weeks for 53 purposes of this section, with the carrier or employer receiving credit 54 for all such subsequent weeks against the amount of maximum benefit 55 weeks when permanent partial disability under this section is deter- 56 mined. In the event of payment for intermittent temporary partial disa-A. 3418 10 1 bility paid after one hundred thirty weeks from the date of accident or 2 disablement, such time shall be reduced to a number of weeks, for which 3 the carrier will receive a credit against the maximum benefit weeks. For 4 a claimant with a date of accident or disablement after the effective 5 date of [the] section one of subpart A of part NNN of chapter 59 of the 6 laws of two thousand seventeen [that amended this subdivision], when 7 permanency is at issue, and a claimant has submitted medical evidence 8 that [he or she] such claimant is not at maximum medical improvement, 9 and the carrier has produced or has had a reasonable opportunity to 10 produce an independent medical examination concerning maximum medical 11 improvement, and the board has determined that the claimant is not yet 12 at maximum medical improvement, the carrier shall not receive a credit 13 for benefit weeks prior to a finding that the claimant has reached maxi- 14 mum medical improvement, at which time the carrier shall receive credit 15 for any weeks of temporary disability paid to claimant after such find- 16 ing against the maximum benefit weeks awarded under this subdivision. 17 For those claimants classified as permanently partially disabled who no 18 longer receive indemnity payments because they have surpassed their 19 number of maximum benefit weeks, the following provisions will apply: 20 (1) There will be a presumption that medical services shall continue 21 notwithstanding the completion of the time period for compensation set 22 forth in this section and the burden of going forward and the burden of 23 proof will lie with the carrier, self-insured employer or state insur- 24 ance fund in any application before the board to discontinue or suspend 25 such services. Medical services will continue during the pendency of any 26 such application and any appeals thereto. 27 (2) The board is directed to promulgate regulations that establish an 28 independent review and appeal by an outside agent or entity of the 29 board's choosing of any administrative law judge's determination to 30 discontinue or suspend medical services before a final determination of 31 the board. 32 4. Effect of award. An award made to a claimant under any paragraph of 33 subdivision three of this section shall in case of death arising from 34 causes other than the injury be payable to and for the benefit of the 35 persons following: 36 a. If there be a surviving spouse and no child of the deceased under 37 the age of eighteen years, to such spouse. 38 b. If there be a surviving spouse and surviving child or children of 39 the deceased under the age of eighteen years, one-half shall be payable 40 to the surviving spouse and the other half to the surviving child or 41 children. 42 The board may in its discretion require the appointment of a guardian 43 for the purpose of receiving the compensation of the minor child. In the 44 absence of such a requirement by the board the appointment for such a 45 purpose shall not be necessary. 46 c. If there be a surviving child or children of the deceased under the 47 age of eighteen years, but no surviving spouse then to such child or 48 children. 49 d. If there be no surviving spouse and no surviving child or children 50 of the deceased under the age of eighteen years, then to such dependent 51 or dependents as defined in section sixteen of this [chapter] article, 52 as directed by the board; and if there be no such dependents, then to 53 the estate of such deceased [in an amount not exceeding reasonable54funeral expenses] as provided in subdivision one of section sixteen of 55 this [chapter] article, or, if there be no estate, to the person or 56 persons paying the funeral expenses of such deceased in an amount notA. 3418 11 1 exceeding reasonable funeral expenses as provided in subdivision one of 2 section sixteen of this [chapter] article. 3 An award for disability may be made after the death of the injured 4 employee. 5 4-a. Protracted temporary total disability in connection with perma- 6 nent partial disability. In case of temporary total disability and 7 permanent partial disability both resulting from the same injury, if the 8 temporary total disability continues for a longer period than the number 9 of weeks set forth in the following schedule, the period of temporary 10 total disability in excess of such number of weeks shall be added to the 11 compensation period provided in subdivision three of this section: Arm, 12 [thirty-two] sixteen weeks; leg, [forty] twenty weeks; hand, [thirty-13two] sixteen weeks; foot, [thirty-two] sixteen weeks; ear, [twenty-five] 14 twelve weeks; eye, [twenty] ten weeks; thumb, [twenty-four] twelve 15 weeks; first finger, [eighteen] nine weeks; great toe, [twelve] six 16 weeks; second finger, [twelve] six weeks; third finger, [eight] four 17 weeks; fourth finger, [eight] four weeks; toe other than great toe, 18 [eight] four weeks. 19 In any case resulting in loss or partial loss of use of arm, leg, 20 hand, foot, ear, eye, thumb, finger or toe, where the temporary total 21 disability does not extend beyond the periods above mentioned for such 22 injury, compensation shall be limited to the schedule contained in 23 subdivision three. 24 5. Temporary partial disability. In case of temporary partial disabil- 25 ity resulting in decrease of earning capacity, the compensation shall be 26 two-thirds of the difference between the injured employee's average 27 weekly wages before the accident and [his] such employee's wage earning 28 capacity after the accident in the same or other employment, which 29 difference shall be the injured employee's loss of wage-earning capaci- 30 ty. Compensation under this subdivision shall be payable during the 31 continuance of such temporary partial disability, without the necessity 32 for the claimant to demonstrate ongoing attachment to the labor market, 33 unless the board finds that the injured employee's loss of wages is 34 wholly unrelated to such employee's partial disability. 35 10. Cost-of-living adjustments of disability benefits in certain 36 cases. (a) Notwithstanding any other provision of law, in addition to 37 any other amount received pursuant to this article as disability bene- 38 fits, an employee with a permanent total disability or the beneficiary 39 dependent of such employee shall be entitled to an additional allowance, 40 to be known as a cost-of-living adjustment allowance, payable annually. 41 (b) The cost-of-living adjustment allowance shall be computed by 42 applying an adjustment for regional costs of living and shall be based 43 on fifty percent of the annual increase in the consumer price index as 44 promulgated by the United States department of labor. 45 § 7. Subdivisions 1-a, 1-b, 1-c, 1-d, 2, 2-a, 2-b, and 4-d of section 46 16 of the workers' compensation law, subdivisions 1-a, 1-b, 1-c and 2 as 47 amended by chapter 168 of the laws of 1979, subdivisions 1-d, 2-b and 48 4-d as added by chapter 689 of the laws of 2007 and subdivision 2-a as 49 amended by chapter 174 of the laws of 1981, are amended and two new 50 subdivisions 1-e and 2-c are added to read as follows: 51 1-a. For the purpose of this section, (1) the term dependent blind or 52 physically disabled as used herein in relation to dependent children 53 shall be deemed to mean totally blind or physically disabled children 54 whose disablement is total and permanent, (2) the term surviving spouse 55 shall be deemed to mean the legal spouse but shall not include a spouse 56 who has abandoned the deceased, [and] (3) the term abandoned shall beA. 3418 12 1 deemed to mean such an abandonment as would be sufficient under section 2 two hundred of the domestic relations law to sustain a judgment of sepa- 3 ration on that ground, and (4) the term "surviving spouse" shall apply 4 to a surviving spouse without regard to remarriage. 5 1-b. If there be a surviving spouse and no child of the deceased under 6 the age of eighteen years and no child of any age dependent blind or 7 physically disabled, and the death occurs on or after July first, nine- 8 teen hundred forty-eight, and prior to January first, nineteen hundred 9 seventy-eight, to such spouse forty per centum of the average wages of 10 the deceased during [widowhood or widowerhood with two years' compen-11sation in one sum, upon remarriage] the applicable period; and where the 12 death occurred prior to July first, nineteen hundred forty-eight, to 13 such [wife (or dependent husband)] spouse thirty per centum of such 14 wages during [widowhood (or dependent widowerhood) with two years'15compensation in one sum, upon remarriage] the applicable period. 16 1-c. If there be a surviving spouse and no child of the deceased under 17 the age of eighteen years or under the age of twenty-three years if 18 enrolled and attending as a full time student in an accredited educa- 19 tional institution and such enrollment and full time attendance is 20 certified by such institution and no child of any age dependent blind or 21 physically disabled, and the death occurs on or after January first, 22 nineteen hundred seventy-eight, to such spouse sixty-six and two-thirds 23 per centum of the average wages of the deceased during [widowhood or24widowerhood with two years' compensation, in one sum, upon remarriage] 25 the applicable period. Where the death occurs on or after January 26 first, nineteen hundred seventy-eight, and the spouse is receiving the 27 survivors insurance benefits under the social security act, the death 28 benefit payable under this section shall be reduced in accordance with 29 the provisions of table No. [1] I below by five per centum of the 30 spouse's share of the survivor's insurance benefits under the social 31 security act for each ten dollars of deceased's average weekly wage in 32 excess of one hundred dollars provided that in no case shall such 33 reduction exceed fifty per centum of said spouse's share of the survi- 34 vors insurance benefits under the social security act. 35 TABLE No. I 36 Offset provisions applicable in death benefits 37 where there is a sole surviving spouse 38 AVERAGE WEEKLY WAGE PERCENTAGE OF SPOUSE'S 39 SHARE OF SURVIVORS 40 INSURANCE BENEFITS 41 over $100 up to and including $110 ................................... 5 42 over $110 up to and including $120 .................................. 10 43 over $120 up to and including $130 .................................. 15 44 over $130 up to and including $140 .................................. 20 45 over $140 up to and including $150 .................................. 25 46 over $150 up to and including $160 .................................. 30 47 over $160 up to and including $170 .................................. 35 48 over $170 up to and including $180 .................................. 40 49 over $180 up to and including $190 .................................. 45 50 over $190 up to and including $200 .................................. 50 51 over $200 ........................................................... 50 52 1-d. If there be a surviving spouse of an employee of a private volun- 53 tary hospital killed in a World Trade Center rescue, who passed a phys-A. 3418 13 1 ical examination upon employment as a rescue worker that failed to 2 reveal evidence of a condition that was the proximate cause of death, 3 and no child of the deceased under the age of eighteen years, or under 4 the age of twenty-three years if enrolled and attending as a full-time 5 student in an accredited educational institution and such enrollment and 6 full-time attendance is certified by such institution, and no child of 7 any age dependent blind or physically disabled, to such spouse seventy- 8 five per centum of the average wages of the deceased during [widowhood9or widowerhood, with two years' compensation, in one sum, upon remar-10riage. Where such death occurs, and the spouse is receiving the survi-11vors insurance benefits under the social security act, the death benefit12payable under this section shall be reduced in accordance with the13provisions of table No. I in subdivision one-c of this section by five14per centum of the spouse's share of the survivor's insurance benefits15under the social security act for each ten dollars of deceased's average16weekly wage in excess of one hundred dollars; provided that in no case17shall such reduction exceed fifty per centum of such spouse's share of18the survivors insurance benefits under the social security act] the 19 applicable period. 20 1-e. If there be a surviving spouse and no child of the deceased under 21 the age of eighteen years or under the age of twenty-three years if 22 enrolled and attending as a full-time student in an accredited educa- 23 tional institution and such enrollment and full-time attendance is 24 certified by such institution and no child of any age dependent blind or 25 physically disabled, and the death occurs on or after January first, two 26 thousand twenty-six, to such spouse sixty-six and two-thirds per centum 27 of the average wages of the deceased during the applicable period. 28 2. If there be a surviving spouse and a surviving child or children of 29 the deceased under the age of eighteen years or a surviving child or 30 children of any age dependent blind or physically disabled, and the 31 death occurs on or after July first, nineteen hundred forty-eight, and 32 prior to January first, nineteen hundred seventy-eight, to such spouse 33 thirty per centum of the average wages of the deceased during [widowhood34or widowerhood with two years' compensation in one sum, upon remarriage] 35 the applicable period; and the additional amount of twenty per centum of 36 such wages for each such child until the age of eighteen years or until 37 the removal of the dependency of the blind or physically disabled child 38 or children; in case of the subsequent death [or remarriage] of such 39 surviving spouse any surviving child of the deceased employee, at the 40 time under eighteen years of age or dependent through mental or physical 41 infirmity, shall have [his] such person's compensation increased to 42 thirty per centum of such wages, and the same shall be payable until 43 [he] such person shall reach the age of eighteen years or until such 44 dependent blind or physically disabled condition shall have been 45 removed; provided that the total amount payable shall in no case exceed 46 sixty-six and two-thirds per centum of such wages. [Upon statutory47termination of compensation payments to all such children, the compen-48sation of the surviving spouse shall be increased to forty per centum of49such wages with two years' compensation, at such rate, in one sum, upon50remarriage.] 51 If there be a surviving [wife (or dependent husband)] spouse and any 52 of the aforementioned surviving children, and the death occurred prior 53 to July first, nineteen hundred forty-eight, to such [wife (or dependent54husband)] spouse thirty per centum of the average wages of the deceased 55 during [widowhood (or dependent widowerhood) with two years' compen-56sation in one sum, upon remarriage] the applicable period; and the addi-A. 3418 14 1 tional amount of ten per centum of such wages for each such child until 2 eighteen years of age or until the removal of the dependency of the 3 blind or physically disabled child or children; in case of the subse- 4 quent death [or remarriage] of such surviving [wife (or dependent5husband)] spouse any surviving child of the deceased shall have [his] 6 such child's compensation increased to fifteen per centum of such wages 7 until [he] such child shall reach the age of eighteen years or until 8 such dependent blind or physically disabled condition shall have been 9 removed; provided that the total amount payable shall in no case exceed 10 sixty-six and two-thirds per centum of such wages. 11 The board may in its discretion require the appointment of a guardian 12 for the purpose of receiving the compensation of a minor child or a 13 dependent blind or physically disabled child. In the absence of such a 14 requirement by the board the appointment of a guardian for such purposes 15 shall not be necessary. 16 2-a. If there be a surviving spouse and a surviving child under the 17 age of eighteen years or under the age of twenty-three years if enrolled 18 and attending as a full time student in an accredited educational insti- 19 tution and such enrollment and full time attendance is certified by such 20 institution or a surviving child of any age dependent blind or phys- 21 ically disabled and the death occurs on or after January first, nineteen 22 hundred seventy-eight, to such spouse thirty-six and two-thirds per 23 centum of the average wages of the deceased during [widowhood or widow-24erhood with two years' compensation in one sum, upon remarriage] the 25 applicable period; and thirty per centum of such wages to such child 26 under the age of eighteen years or under the age of twenty-three years 27 if enrolled and attending as a full time student in an accredited educa- 28 tional institution and such enrollment and full time attendance is 29 certified by such institution or a surviving child of any age dependent 30 blind or physically disabled; in the case of the subsequent death of 31 such surviving spouse the surviving child shall have [his] such child's 32 compensation increased to sixty-six and two-thirds per centum of such 33 wages and the same shall be payable so long as [he] such child is under 34 the age of eighteen years or under the age of twenty-three years if 35 enrolled and attending as a full time student in an accredited educa- 36 tional institution and such enrollment and full time attendance is 37 certified by such institution or a surviving child of any age dependent 38 blind or physically disabled; upon statutory termination of compensation 39 payable to such child, the compensation of the surviving spouse shall be 40 increased to sixty-six and two-thirds per centum of such wages [with two41years' compensation, at such rate, in one sum, upon remarriage. Upon42remarriage of such surviving spouse, the surviving child shall continue43to receive thirty per centum of such wages]. Where the death occurs on 44 or after January first, nineteen hundred seventy-eight and the spouse is 45 receiving survivors insurance benefits under the social security act, 46 the death benefit payable under this section shall be reduced by five 47 per centum of the spouse's share of the survivors insurance benefits 48 under the social security act for each ten dollars of deceased's average 49 weekly wage in excess of one hundred dollars provided that in no case 50 shall such reduction exceed fifty per centum of said spouse's share of 51 the survivors insurance benefits under the social security act as set 52 forth in table No. I below. 53 TABLE No. I 54 Offset provisions applicable in death benefitsA. 3418 15 1 where there is a surviving spouse and one child 2 AVERAGE WEEKLY WAGE PERCENTAGE OF SPOUSE'S 3 SHARE OF SURVIVORS 4 INSURANCE BENEFITS 5 over $100 up to and including $110 ................................... 5 6 over $110 up to and including $120 .................................. 10 7 over $120 up to and including $130 .................................. 15 8 over $130 up to and including $140 .................................. 20 9 over $140 up to and including $150 .................................. 25 10 over $150 up to and including $160 .................................. 30 11 over $160 up to and including $170 .................................. 35 12 over $170 up to and including $180 .................................. 40 13 over $180 up to and including $190 .................................. 45 14 over $190 up to and including $200 .................................. 50 15 over $200 ........................................................... 50 16 If there be a surviving spouse and two or more surviving children 17 under the age of eighteen years or under the age of twenty-three years 18 if enrolled and attending as a full time student in an accredited educa- 19 tional institution and such enrollment and full time attendance is 20 certified by such institution or a surviving child or children of any 21 age dependent blind or physically disabled and a death occurs on or 22 after January first, nineteen hundred seventy-eight, to such spouse 23 thirty-six and two-thirds per centum of the average wage of the deceased 24 during [widowhood or widowerhood with two years' compensation in one sum25upon remarriage] the applicable period; and thirty per centum of such 26 wages to such children under the age of eighteen years or under the age 27 of twenty-three years if enrolled and attending as a full time student 28 in an accredited educational institution and such enrollment and full 29 time attendance is certified by such institution or a surviving child or 30 children of any age dependent blind or physically disabled, share and 31 share alike; in case of the subsequent death of such surviving spouse 32 the surviving children shall have their compensation increased to 33 sixty-six and two-thirds per centum of such wages and the aggregate sum 34 shall be payable, share and share alike, so long as they are under the 35 age of eighteen years or under the age of twenty-three years if enrolled 36 and attending as a full time student in an accredited educational insti- 37 tution and such enrollment and full time attendance is certified by such 38 institution or a surviving child or children of any age dependent blind 39 or physically disabled. [Upon remarriage of such surviving spouse, if40there be two surviving children each shall receive twenty-five per41centum of such wages, and if there are surviving more than two children42under the age of eighteen years or under the age of twenty-three if43enrolled and attending as a full time student in an accredited educa-44tional institution and such enrollment and full time attendance is45certified by such institution or a surviving child or children of any46age dependent blind or physically disabled sixty-six and two-thirds per47centum of such wages share and share alike.] Upon statutory termination 48 of compensation payable to such children, the compensation of the 49 surviving spouse shall be increased to sixty-six and two-thirds per 50 centum of such wages [with two years' compensation, at such rate, in one51sum, upon remarriage]. Where the death occurs on or after January first, 52 nineteen hundred seventy-eight, and the spouse is receiving survivors 53 insurance benefits under the social security act, the death benefits 54 payable under this section shall be reduced by five per centum of the 55 spouse's share of the survivors insurance benefits under the socialA. 3418 16 1 security act for each ten dollars of deceased's average weekly wage in 2 excess of one hundred fifty dollars provided that in no case shall such 3 reduction exceed fifty per centum of said spouse's share of the survi- 4 vors insurance benefits under the social security act as set forth in 5 table No. II below. 6 TABLE No. II 7 Offset provisions applicable in death benefits 8 where there is a surviving spouse and two or more children 9 AVERAGE WEEKLY WAGE PERCENTAGE OF SPOUSE'S 10 SHARE OF SURVIVORS 11 INSURANCE BENEFITS 12 over $150 up to and including $160 ................................... 5 13 over $160 up to and including $170 .................................. 10 14 over $170 up to and including $180 .................................. 15 15 over $180 up to and including $190 .................................. 20 16 over $190 up to and including $200 .................................. 25 17 over $200 up to and including $210 .................................. 30 18 over $210 up to and including $220 .................................. 35 19 over $220 up to and including $230 .................................. 40 20 over $230 up to and including $240 .................................. 45 21 over $240 up to and including $250 .................................. 50 22 over $250 ........................................................... 50 23 2-b. If there be a surviving spouse of an employee of a private volun- 24 tary hospital killed in a World Trade Center rescue, who passed a phys- 25 ical examination upon employment as a rescue worker that failed to 26 reveal evidence of a condition that was the proximate cause of death, 27 and a surviving child under the age of eighteen years, or under the age 28 of twenty-three years if enrolled and attending as a full-time student 29 in an accredited educational institution and such enrollment and full- 30 time attendance is certified by such institution, or a surviving child 31 of any age dependent blind or physically disabled, to such spouse forty 32 per centum of the average wages of the deceased during [widowhood or33widowerhood, with two years' compensation in one sum, upon remarriage] 34 the applicable period; and thirty-five per centum of such wages to such 35 child under the age of eighteen years, or under the age of twenty-three 36 years if enrolled and attending as a full-time student in an accredited 37 educational institution and such enrollment and full-time attendance is 38 certified by such institution, or a surviving child of any age dependent 39 blind or physically disabled; in the case of the subsequent death of 40 such surviving spouse the surviving child shall have [his or her] such 41 child's compensation increased to seventy-five per centum of such wages 42 and the same shall be payable so long as [he or she] such child is under 43 the age of eighteen years, or under the age of twenty-three years if 44 enrolled and attending as a full-time student in an accredited educa- 45 tional institution and such enrollment and full-time attendance is 46 certified by such institution, or a surviving child of any age dependent 47 blind or physically disabled; upon statutory termination of compensation 48 payable to such child, the compensation of the surviving spouse shall be 49 increased to seventy-five per centum of such wages [with two years'50compensation, at such rate, in one sum, upon remarriage]. [Upon remar-51riage of such surviving spouse, the surviving child shall continue to52receive thirty-five per centum of such wages. Where such death occurs,53and the spouse is receiving survivors insurance benefits under theA. 3418 17 1social security act, the death benefit payable under this section shall2be reduced by five per centum of the spouse's share of the survivors3insurance benefits under the social security act for each ten dollars of4deceased's average weekly wage in excess of one hundred dollars;5provided that in no case shall such reduction exceed fifty per centum of6such spouse's share of the survivors insurance benefits under the social7security act as set forth in table No. I in subdivision one-c of this8section.] If there be a surviving spouse of an employee of a private 9 voluntary hospital killed in a World Trade Center rescue, who passed a 10 physical examination upon employment as a rescue worker that failed to 11 reveal evidence of a condition that was the proximate cause of death, 12 and two or more surviving children under the age of eighteen years, or 13 under the age of twenty-three years if enrolled and attending as a full- 14 time student in an accredited educational institution and such enroll- 15 ment and full-time attendance is certified by such institution, or a 16 surviving child or children of any age dependent blind or physically 17 disabled and a death occurs on or after September eleventh, two thousand 18 one, to such spouse forty per centum of the average wage of the deceased 19 during [widowhood or widowerhood with two years' compensation in one sum20upon remarriage] the applicable period; and thirty-five per centum of 21 such wages to such children under the age of eighteen years, or under 22 the age of twenty-three years if enrolled and attending as a full-time 23 student in an accredited educational institution and such enrollment and 24 full-time attendance is certified by such institution, or a surviving 25 child or children of any age dependent blind or physically disabled, 26 share and share alike; in case of the subsequent death of such surviving 27 spouse the surviving children shall have their compensation increased to 28 seventy-five per centum of such wages and the aggregate sum shall be 29 payable, share and share alike, so long as they are under the age of 30 eighteen years, or under the age of twenty-three years if enrolled and 31 attending as a full-time student in an accredited educational institu- 32 tion and such enrollment and full-time attendance is certified by such 33 institution, or a surviving child or children of any age dependent blind 34 or physically disabled. [Upon remarriage of such surviving spouse, if35there be two surviving children each shall receive thirty-seven and36one-half per centum of such wages, and if there are surviving more than37two children under the age of eighteen years, or under the age of twen-38ty-three if enrolled and attending as a full-time student in an accred-39ited educational institution and such enrollment and full-time attend-40ance is certified by such institution, or a surviving child or children41of any age dependant blind or physically disabled, seventy-five per42centum of such wages share and share alike.] Upon statutory termination 43 of compensation payable to such children, the compensation of the 44 surviving spouse shall be increased to seventy-five per centum of such 45 wages [with two years' compensation, at such rate, in one sum, upon46remarriage]. Where the death occurs on or after September eleventh, two 47 thousand one, and the spouse is receiving survivors insurance benefits 48 under the social security act, the death benefits payable under this 49 section shall be reduced by five per centum of the spouse's share of the 50 survivors insurance benefits under the social security act for each ten 51 dollars of deceased's average weekly wage in excess of one hundred fifty 52 dollars; provided that in no case shall such reduction exceed fifty per 53 centum of said spouse's share of the survivors insurance benefits under 54 the social security act as set forth in table No. II in subdivision 55 two-a of this section.A. 3418 18 1 2-c. If there be a surviving spouse and a surviving child under the 2 age of eighteen years or under the age of twenty-three years if enrolled 3 and attending as a full-time student in an accredited educational insti- 4 tution and such enrollment and full-time attendance is certified by such 5 institution or a surviving child of any age dependent blind or phys- 6 ically disabled and the death occurs on or after January first, two 7 thousand twenty-six, to such spouse thirty-six and two-thirds per centum 8 of the average wages of the deceased during the applicable period; and 9 thirty per centum of such wages to such child under the age of eighteen 10 years or under the age of twenty-three years if enrolled and attending 11 as a full-time student in an accredited educational institution and such 12 enrollment and full-time attendance is certified by such institution or 13 a surviving child of any age dependent blind or physically disabled; in 14 the case of the subsequent death of such surviving spouse the surviving 15 child shall have their compensation increased to sixty-six and two- 16 thirds per centum of such wages and the same shall be payable so long as 17 they are under the age of eighteen years or under the age of twenty- 18 three years if enrolled and attending as a full-time student in an 19 accredited educational institution and such enrollment and full-time 20 attendance is certified by such institution or a surviving child of any 21 age dependent blind or physically disabled; upon statutory termination 22 of compensation payable to such child, the compensation of the surviving 23 spouse shall be increased to sixty-six and two-thirds per centum of such 24 wages. 25 If there be a surviving spouse and two or more surviving children 26 under the age of eighteen years or under the age of twenty-three years 27 if enrolled and attending as a full-time student in an accredited educa- 28 tional institution and such enrollment and full-time attendance is 29 certified by such institution or a surviving child or children of any 30 age dependent blind or physically disabled and a death occurs on or 31 after January first, two thousand twenty-six, to such spouse thirty-six 32 and two-thirds per centum of the average wage of the deceased during the 33 applicable period; and thirty per centum of such wages to such children 34 under the age of eighteen years or under the age of twenty-three years 35 if enrolled and attending as a full-time student in an accredited educa- 36 tional institution and such enrollment and full-time attendance is 37 certified by such institution or a surviving child or children of any 38 age dependent blind or physically disabled, share and share alike; in 39 case of the subsequent death of such surviving spouse the surviving 40 children shall have their compensation increased to sixty-six and two- 41 thirds per centum of such wages and the aggregate sum shall be payable, 42 share and share alike, so long as they are under the age of eighteen 43 years or under the age of twenty-three years if enrolled and attending 44 as a full-time student in an accredited educational institution and such 45 enrollment and full-time attendance is certified by such institution or 46 a surviving child or children of any age dependent blind or physically 47 disabled. Upon statutory termination of compensation payable to such 48 children, the compensation of the surviving spouse shall be increased to 49 sixty-six and two-thirds per centum of such wages. 50 4-d. If there be no surviving spouse or child, or children of an 51 employee of a private voluntary hospital killed in a World Trade Center 52 rescue, who passed a physical examination upon employment as a rescue 53 worker that failed to reveal evidence of a condition that was the proxi- 54 mate cause of death, under the age of eighteen years, or under the age 55 of twenty-three years if enrolled and attending as a full-time student 56 in an accredited educational institution and such enrollment and full-A. 3418 19 1 time attendance is certified by such institution, or dependent blind or 2 physically disabled child of any age, or grandchildren or [brothers and3sisters] siblings if dependent upon the deceased at the time of the 4 accident, under the age of eighteen years, or under the age of twenty- 5 three years if enrolled and attending as a full-time student in an 6 accredited educational institution and such enrollment and full-time 7 attendance is certified by such institution, or disabled blind or phys- 8 ically disabled grandchildren or [brothers and sisters] siblings of any 9 age, then a sum of [fifty] one hundred thousand dollars shall be paid to 10 the deceased's surviving parents or if there be no surviving parents to 11 the deceased's estate. 12 § 8. The workers' compensation law is amended by adding a new section 13 17-b to read as follows: 14 § 17-b. Limited English proficiency. 1. The board shall provide trans- 15 lation of all documents and forms used by or issued to injured employ- 16 ees. The translation shall be in the six most common non-English 17 languages spoken by individuals with limited-English proficiency in the 18 state of New York. 19 2. The board shall provide interpretation services to injured employ- 20 ees with respect to its provision of services, information and/or bene- 21 fits. 22 3. The board shall publish a language access plan that reflects: 23 (a) the means by which it provides language assistance services; 24 (b) the titles of all available translated documents and the languages 25 into which they have been translated; 26 (c) the number of public contact positions at the board and the number 27 of bilingual employees in public contact positions, including the 28 languages they speak; 29 (d) a training plan for board employees which includes, at minimum, 30 annual training on its language access policies and how to provide 31 language assistance services; 32 (e) a plan for annual internal monitoring of the board's language 33 access plan; 34 (f) a plan of how the board intends to notify injured employees of 35 offered language assistant services; and 36 (g) the appointment of a language access coordinator at the board, who 37 shall be publicly identified. 38 4. The language access coordinator for the board shall monitor the 39 agency's compliance with this section by annually collecting data on the 40 provision of language assistance services, the availability of trans- 41 lated materials, whether signage is properly posted, and any other rele- 42 vant measures. 43 § 9. Section 18 of the workers' compensation law, as amended by chap- 44 ter 747 of the laws of 1947, is amended to read as follows: 45 § 18. Notice of injury or death. Notice of an injury or death for 46 which compensation is payable under this chapter shall be given to the 47 employer within thirty days after the accident causing such injury, and 48 also in case of the death of the employee resulting from such injury, 49 within thirty days after such death. Such notice may be given by any 50 person claiming to be entitled to compensation, or by [some one in his] 51 someone on such person's behalf. The notice shall be in writing, and 52 contain the name and address of the employee, and state in ordinary 53 language the time, place, nature and cause of the injury, and be signed 54 by [him] such person or by a person on [his] such person's behalf or, in 55 case of death, by any one or more of [his] such person's dependents, or 56 by a person, on their behalf. It shall be given to the employer byA. 3418 20 1 delivering it to [him] such employer or sending it by mail, by regis- 2 tered letter, addressed to the employer at [his or its] such employer's 3 last known place of business; provided that, if the employer be a part- 4 nership then such notice may be so given to any one of the partners, and 5 if the employer be a corporation, then such notice may be given to any 6 agent or officer thereof upon whom legal process may be served, or any 7 agent in charge of [his] such employer's business in the place where the 8 injury occurred. The failure to give notice of injury or notice of death 9 unless excused by the board either on the ground that notice for some 10 sufficient reason could not have been given, or on the ground that the 11 employer, or [his or its] such employer's agents in charge of the busi- 12 ness in the place where the accident occurred or having immediate super- 13 vision of the employee to whom the accident happened, had knowledge of 14 the accident or death, or on the ground that the employer has not been 15 prejudiced thereby, shall be a bar to any claim under this chapter, but 16 the employer and the insurance carrier shall be deemed to have waived 17 such notice unless the objection to the failure to give such notice or 18 the insufficiency thereof, is raised before the board on the first hear- 19 ing of the claim [field] filed by such injured employee, or [his or her] 20 such employee's dependents at which all parties in interest are present, 21 or represented, and at which the claimant, or principal beneficiary, 22 testifies. The burden of proof on the issue of prejudice shall rest with 23 the employer. 24 § 10. Subdivision 1 of section 20 of the workers' compensation law, as 25 amended by chapter 635 of the laws of 1996, is amended to read as 26 follows: 27 1. At any time after [the expiration of the first seven days of disa-28bility on the part of] an injury the injured employee, or at any time 29 after the employee's death, a claim for compensation may be presented to 30 the employer or to the chair. The board shall hold an initial hearing 31 in each claim and shall have full power and authority to determine all 32 questions in relation to the payment of claims presented to it for 33 compensation under the provisions of this chapter. The chair or board 34 shall make or cause to be made such investigation as it deems necessary, 35 and upon application of either party, shall order a hearing, and within 36 thirty days after a claim for compensation is submitted under this 37 section, or such hearing closed, shall make or deny an award, determin- 38 ing such claim for compensation, and file the same in the office of the 39 chair. Immediately after such filing the chair shall send to the parties 40 a copy of the decision. Upon a hearing pursuant to this section either 41 party may present evidence and be represented by counsel. The decision 42 of the board shall be final as to all questions of fact, and, except as 43 provided in section twenty-three of this article, as to all questions of 44 law. Except as provided in section twenty-seven of this article, all 45 awards of the board shall draw simple interest from thirty days after 46 the making thereof at the rate provided in section five thousand four of 47 the civil practice law and rules. Whenever a hearing or proceeding for 48 the determination of a claim for compensation is begun before a referee, 49 pursuant to the provisions of this chapter, such hearing or proceeding 50 or any adjourned hearing thereon shall continue before the same referee 51 until a final determination awarding or denying compensation, except in 52 the absence, inability or disqualification to act of such referee, or 53 for other good cause, in which event such hearing or proceeding may be 54 continued before another referee by order of the chair or board. 55 § 11. Section 24 of the workers' compensation law is amended by adding 56 a new subdivision 5 to read as follows:A. 3418 21 1 5. Where the claim is solely for medical treatment, and no award of 2 compensation is made, attorneys and counselors-at-law may submit a claim 3 for legal services rendered in connection with obtaining authorization 4 or approval for such medical treatment, including the provision of 5 advice and representation for the injured worker. The board shall review 6 and approve such claims, having due regard for the services rendered and 7 whether authorization or approval was obtained. The fees awarded to an 8 attorney pursuant to this subdivision shall be paid by the employer or 9 carrier. Any attorney fee awarded pursuant to this subdivision shall 10 become a credit against a subsequent attorney fee requested pursuant to 11 subdivision (b) of this section. 12 § 12. Subdivision 2-b of section 25 of the workers' compensation law 13 is REPEALED and subdivision 2-c is renumbered subdivision 2-b. 14 § 13. Paragraphs (b) and (c) of subdivision 3 of section 25 of the 15 workers' compensation law, as amended by chapter 61 of the laws of 1986, 16 are amended to read as follows: 17 (b) Nothing herein shall limit the right of the board in a particular 18 case to hold a hearing and make an award in accordance with other 19 provisions of this chapter. No case shall be closed and no decision 20 shall be issued without a hearing upon notice to all parties interested 21 and without giving to all such parties an opportunity to be heard. 22 (c) The board shall keep an accurate stenographic record of all hear- 23 ings held. Whenever a hearing must be continued or adjourned because 24 the carrier or employer has engaged in dilatory tactics or exhibited 25 unjustified lack of preparedness, the board shall impose a penalty of 26 twenty-five dollars to be paid to the fund created by subdivision two of 27 section one hundred fifty-one of this chapter and shall in addition make 28 an award of seventy-five dollars payable to the injured worker or [his29or her] such worker's dependants. Dilatory tactics may include but shall 30 not be limited to: failing to subpoena medical witnesses or to secure 31 an order to show cause as directed by the referee, failing to bring 32 proper files, failing to appear, failing to produce witnesses or docu- 33 ments after they have been requested by the referee or examiner or as 34 directed by the hearing notice, unnecessarily protracting the production 35 of evidence, or engaging in a pattern of delay which unduly delays 36 resolution, except that no penalty shall be imposed nor award made under 37 this subdivision if the carrier or employer produces evidence sufficient 38 to excuse its conduct to the satisfaction of the referee. 39 § 14. Subdivision 1, the fifth undesignated paragraph of subdivision 5 40 and subdivision 6 of section 29 of the workers' compensation law, subdi- 41 vision 1 as amended by chapter 805 of the laws of 1984 and as further 42 amended by section 104 of part A of chapter 62 of the laws of 2011, the 43 fifth undesignated paragraph of subdivision 5 as amended by chapter 246 44 of the laws of 1967, and subdivision 6 as amended by chapter 635 of the 45 laws of 1996, are amended to read as follows: 46 1. If an employee entitled to compensation under this chapter be 47 injured or killed by the negligence or wrong of another not in the same 48 employ, such injured employee, or in case of death, [his] such employ- 49 ee's dependents, need not elect whether to take compensation and medical 50 benefits under this chapter or to pursue [his] such employee's remedy 51 against such other but may take such compensation and medical benefits 52 and at any time either prior thereto or within six months after the 53 awarding of compensation or within nine months after the enactment of a 54 law or laws creating, establishing or affording a new or additional 55 remedy or remedies, pursue [his] such employee's remedy against such 56 other subject to the provisions of this chapter. If such injured employ-A. 3418 22 1 ee, or in case of death, [his] such employee's dependents, take or 2 intend to take compensation, and medical benefits in the case of an 3 employee, under this chapter and desire to bring action against such 4 other, such action must be commenced not later than six months after the 5 awarding of compensation or not later than nine months after the enact- 6 ment of such law or laws creating, establishing or affording a new or 7 additional remedy or remedies and in any event before the expiration of 8 one year from the date such action accrues. In such case, the state 9 insurance fund, if compensation be payable therefrom, and otherwise the 10 person, association, corporation or insurance carrier liable for the 11 payment of such compensation, as the case may be, shall have a lien on 12 the proceeds of any recovery from such other to the extent such recovery 13 is for lost wages or medical expenses, whether by judgment, settlement 14 or otherwise, after the deduction of the reasonable and necessary 15 expenditures, including attorney's fees, incurred in effecting such 16 recovery, to the extent of the total amount of compensation awarded 17 under or provided or estimated by this chapter for such case and the 18 expenses for medical treatment paid or to be paid by it and to such 19 extent such recovery shall be deemed for the benefit of such fund, 20 person, association, corporation or carrier. Should the employee or 21 [his] such employee's dependents secure a recovery from such other, 22 whether by judgment, settlement or otherwise, such employee or depen- 23 dents may apply on notice to such lienor to the court in which the third 24 party action was instituted, or to a court of competent jurisdiction if 25 no action was instituted, for an order apportioning the reasonable and 26 necessary expenditures, including attorneys' fees, incurred in effecting 27 such recovery. Such expenditures shall be equitably apportioned by the 28 court between the employee or [his] such employee's dependents and the 29 lienor. Notice of the commencement of such action shall be given within 30 thirty days thereafter to the [chairman] chairperson, the employer and 31 the insurance carrier upon a form prescribed by the [chairman] chair- 32 person. Any of the foregoing providers of compensation and/or medical 33 benefits which has recovered a lien pursuant to the provisions hereof 34 against the recovery of a person injured on or after February first, 35 nineteen hundred seventy-four and before July first, nineteen hundred 36 seventy-eight, through the use or operation of a motor vehicle in this 37 state, shall notify such person by certified mail in a manner to be 38 approved by the [chairman] chairperson and the superintendent of finan- 39 cial services of the responsibility of an "insurer" (as defined in 40 subsection (g) of section five thousand one hundred two of the insurance 41 law), to reimburse such person under such circumstances to the extent 42 that the recovered lien represent first party benefits as defined in 43 article fifty-one of the insurance law. 44 A copy of the papers to be used on the application to compromise and 45 settle the claim must be served as directed by the court or in the same 46 manner as provided in the civil practice law and rules for a notice of 47 motion upon the commissioners of the state insurance fund or such offi- 48 cer thereof designated by them or upon the person, association, corpo- 49 ration, or insurance carrier, whose written approval would have been 50 required to compromise such cause of action by the employee or [his] 51 such employee's dependents. This notice shall afford them the opportu- 52 nity to submit affidavits and to be heard by the court on the applica- 53 tion. A petition may also be filed pursuant to this subdivision allocat- 54 ing a portion of the third-party recovery to lost wages and/or medical 55 treatment.A. 3418 23 1 6. [The] Except as set forth in section eleven of this article, the 2 right to compensation or benefits under this chapter, shall be the 3 exclusive remedy to an employee, or in case of death [his or her] such 4 employee's dependents, when such employee is injured or killed by the 5 negligence or wrong of another in the same employ, the employer's insur- 6 er or any collective bargaining agent of the employer's employees or any 7 employee, of such insurer or such collective bargaining agent (while 8 acting within the scope of [his or her] such individual's employment). 9 The limitation of liability of an employer set forth in section eleven 10 of this article for the injury or death of an employee shall be applica- 11 ble to another in the same employ, the employer's insurer, any collec- 12 tive bargaining agent of the employer's employees or any employee of the 13 employer's insurer or such collective bargaining agent (while acting 14 within the scope of [his or her] such individual's employment). The 15 option to maintain an action in the courts for damages [based on the16employer's failure to secure compensation for injured employees and17their dependents as set forth in section eleven of this article] shall 18 not be construed to include the right to maintain an action against 19 another in the same employ, [the employer's insurer,] any collective 20 bargaining agent of the employer's employees or any employee [of the21employer's insurer] or such collective bargaining agent (while acting 22 within the scope of [his or her] such individual's employment). 23 § 15. Subdivision 3 of section 35 of the workers' compensation law, as 24 amended by section 2 of subpart A of part NNN of chapter 59 of the laws 25 of 2017, is amended and a new subdivision 5 is added to read as follows: 26 3. Extreme hardship redetermination. In cases where the loss of wage- 27 earning capacity is greater than [seventy-five] fifty percent, a claim- 28 ant may request[, within the year prior to the scheduled exhaustion of29indemnity benefits under paragraph w of subdivision three of section30fifteen of this article], that the board reclassify the claimant to 31 permanent total disability or total industrial disability due to factors 32 reflecting extreme hardship. Extreme hardship is defined as: (a) the 33 injured worker's income from Social Security disability benefits and 34 disability pension (if applicable) would be less than fifty percent of 35 such worker's average weekly wage upon termination of PPD benefits; or 36 (b) the injured worker will be unable to meet expenses for themself and 37 any dependents upon termination of PPD benefits; or (c) additional 38 medical, functional or vocational factors arising subsequent to the 39 classification of permanent partial disability have further eroded the 40 injured worker's wage earning capacity; or (d) the injured worker's 41 income would be below the federal poverty guidelines upon termination of 42 PPD benefits. 43 5. Return to work programs. The following programs shall be developed 44 and implemented by January first, two thousand twenty-six: 45 (a) Return to work education. The board and the department of labor 46 shall develop and provide education tools and technical assistance on 47 how to build a return to work culture within an organization, partic- 48 ularly to small- and medium-sized employers. These tools shall include 49 templates of sample policies and procedural frameworks for return to 50 work programs, and illustrations of the financial benefits of effective 51 return to work protocols. In addition, the board and the department of 52 labor shall develop and implement, with input from stakeholders, an 53 education program for all participants in the workers' compensation 54 system, including employers and employees, carriers, claimants' attor- 55 neys and claims examiners, on the value and components of an effectiveA. 3418 24 1 return to work program and their respective roles in assuring positive 2 return to work outcomes. 3 (b) Employer return to work policies. The board shall require a 4 formal, consistent return to work policy of all New York employers who 5 employ more than twenty-five individuals, and carriers shall provide 6 model policies for employers of fewer than twenty-five. The policy shall 7 be written and tailored to the specific needs of the employer. 8 (c) Return to work communication. The board shall redesign the forms 9 it uses to encourage and improve early and frequent outreach from the 10 employer to the injured worker, from the physician to the employer and 11 from the physician to the injured worker. These forms shall seek clearer 12 information on job duties and physical demands of a given job; ascertain 13 the extent to which physicians are communicating with the injured worker 14 about return to work; and contain information that will allow review by 15 board staff to ensure that injured workers are not needlessly delayed 16 treatment or services that could facilitate return to work. 17 (d) Improvements in the physician's role. The occupational health 18 clinics, administered by the department of health, shall develop content 19 and curriculum for a continuing medical education course on return to 20 work. The board shall improve training of physicians around return to 21 work principles. The board shall assure that physicians are compensated 22 for the time it takes to evaluate true return to work opportunities 23 within the injured worker's functional capabilities. 24 (e) Vocational rehabilitation evaluations. The board shall assure that 25 a neutral, non-medical vocational rehabilitation evaluation is provided 26 to all claimants who have not returned to work at the time they have 27 reached maximum medical improvement to determine whether their return to 28 work would be facilitated by vocational education or training. The eval- 29 uation shall be done under a standardized protocol established by the 30 board and shall be binding on all parties. The vocational assessment 31 shall be paid for by the carrier, self-insured employer or the state 32 insurance fund. Submission of the current rehabilitation form shall be 33 required, and penalties shall be imposed for the late or non-filing of 34 forms related to return to work and rehabilitation programs. 35 (f) Vocational rehabilitation services. The board shall assure that 36 vocational rehabilitation services are provided more expeditiously to 37 injured workers and are appropriately funded. The options available and 38 the costs shall be subject to regulation by the board. If the evaluation 39 recommends vocational education or retraining, the costs shall be 40 covered first by appropriate sources of state or federal funding. Carri- 41 ers shall not be permitted to seek a change in an injured worker's clas- 42 sification status while that individual is actively participating in 43 retraining or vocational rehabilitation in accordance with the individ- 44 ualized reemployment plan developed as a result of the vocational reha- 45 bilitation evaluation. 46 (g) Incentive programs. The board, the department, and the department 47 of financial services shall develop incentive programs targeted to 48 hiring workers who have permanent work restrictions. These programs 49 shall be established and analyzed for their impact on return to work 50 rates and cost effectiveness. Parameters for such program, at a minimum, 51 shall include those which offer employers wage subsidies for employing 52 and retraining injured workers, reimbursement for workplace accommo- 53 dations to enable injured workers to adjust the job to their capacities, 54 vocational assessments, retraining for those injured workers who cannot 55 return to their at-injury employer and funds for purchase of items that 56 are required of any new hire. Return to work programs subsidized byA. 3418 25 1 these programs shall, at a minimum, be at eighty percent of the pre-hire 2 wage. Incentive programs shall require an employer match. 3 (h) Medical only cases. The board shall compensate attorneys for 4 representation provided in certain medical-only cases, so as to facili- 5 tate the medical care necessary for an injured worker's return to the 6 labor force. 7 (i) Workers' compensation board process issues. The board shall put in 8 place improvements and proactive approaches to return to work. It shall 9 develop procedures for promptly contacting claimants no later than one 10 hundred twenty days after injury or within two weeks of maximum medical 11 improvement to determine the feasibility of return to work. Partic- 12 ipants in the workers' compensation system, including the administrative 13 law judges, shall be educated on the importance of return to work. The 14 board shall establish a procedure to ensure that all claimants who are 15 eligible for a reduced earning award receive such award. 16 (j) Return to work for public employees. A "pay without prejudice" 17 pilot program shall be undertaken with state agencies and selected 18 public authorities and local governments to speed up appropriate medical 19 treatment to workers that sustain workplace injuries. The program shall 20 be analyzed to determine whether improvements in timeliness of medical 21 authorization results improve return to work outcomes of public employ- 22 ees. 23 § 16. The workers' compensation law is amended by adding a new section 24 59 to read as follows: 25 § 59. Financial statement and detailed claim data to be filed with the 26 board. (a) For purposes of this section, the term "insurer" means any 27 person, corporation, association or other business entity which issues a 28 policy of workers' compensation insurance. 29 (b) On or before April first of each year, every insurer shall for the 30 calendar year provide the board and the public with a detailed financial 31 statement to supplement and expand upon any other information otherwise 32 provided to the board, the department of financial services, or the New 33 York compensation insurance rating board as it relates to an insurer's 34 provision of workers' compensation insurance coverage to employers; 35 provided, however, that the initial financial statement so filed by an 36 insurer after the effective date of this section shall include the 37 information required in this subdivision not only for such prior calen- 38 dar year but also for the previous nine calendar years prior to such 39 report. The financial statement shall, in depth, detail: 40 (1) total premium collected; 41 (2) assessments collected; 42 (3) dividend income; 43 (4) payment of workers' compensation benefits for temporary disabili- 44 ty; 45 (5) non-scheduled permanent partial disability; 46 (6) scheduled permanent partial disability; 47 (7) permanent total disability; 48 (8) death benefits; 49 (9) medical treatment; 50 (10) payments to vendors including but not limited to: (i) independent 51 medical examination providers; (ii) investigators; (iii) nurse case 52 managers; (iv) peer reviews; (v) utilization reviews; and (vi) defense 53 litigation costs; 54 (11) number of open claims at the time such statement is prepared; 55 (12) other expenses by category as determined by the board to reflect 56 the cost to the insurer to provide such coverage;A. 3418 26 1 (13) investment income realized from that portion of the premium paid 2 for a policy providing such coverage; 3 (14) lien recoveries pursuant to section twenty-nine of this chapter; 4 (15) credits or offsets obtained pursuant to section twenty-nine of 5 this chapter; and 6 (16) credits, premium reductions, experience modifications or other 7 benefits provided to insured employers as a result of lien recoveries 8 and credits obtained pursuant to section twenty-nine of this chapter. 9 (c) The board shall, in both written form and as part of the agency 10 website, make such financial statements and detailed claim information 11 available to the public. The detailed claim information shall be 12 provided in aggregate form for all insurers and separated by specific 13 insurer, combined without any identification of a specific claim to a 14 specific insurer. None of the publicly available detailed claim informa- 15 tion shall identify the individual insurer, employer or employee, or 16 representative of the same, associated with the claim. Such financial 17 statements and detailed claim information shall be deemed a public docu- 18 ment and no person shall be required to file a request for such finan- 19 cial statements pursuant to article six of the public officers law in 20 order to receive a copy thereof, but upon request and payment of the fee 21 for copying such document, it shall be provided forthwith. With respect 22 to the electronic copy of such financial statements and detailed claim 23 information, which shall be accessible on the board's website, the board 24 shall highlight the availability of such information to the public on 25 such website, and the link to each insurer's financial statement and the 26 aggregated detailed claim information shall be accessible in a simple 27 and easy manner. Both the financial statement and aggregated detailed 28 claim information on the board's website shall be available in spread- 29 sheet format, in addition to any other format the chair determines is 30 appropriate. Where summaries are included, they shall be written in 31 plain and simple English so that the public at large can easily compre- 32 hend the data provided. 33 (d) On or before July first of each year, the chair shall issue 34 reports summarizing and explaining the information collected from the 35 financial statements and the detailed claim information and summarizing 36 the cost and other essential elements relevant to providing workers' 37 compensation insurance coverage. Copies of such reports shall be 38 forwarded to the temporary president of the senate, the speaker of the 39 assembly and the chairs of the senate and assembly insurance committees. 40 Such reports shall be public documents and shall be accessible both in 41 paper copy and on the board's website in a similar fashion as provided 42 for in subsection (c) of this subdivision. 43 (e) Where an insurer fails or refuses to provide the board with a full 44 and complete disclosure as required by this section, the chair shall 45 take such action the chair deems necessary to bring the insurer into 46 full compliance. Such action may include imposition of a civil penalty 47 of up to fifty thousand dollars assessed against the insurer for each 48 violation, temporary suspension of any right to issue additional poli- 49 cies or contracts until the insurer brings itself into full compliance, 50 an audit of the insurer's records by the department of financial 51 services or its designated representative to obtain the information and 52 which audit shall be paid for by the insurer, or any other civil remedy 53 the chair deems warranted or necessary until such insurer fully 54 complies. In addition the officer whose signature is affixed to such 55 statement may be personally penalized to the same extent.A. 3418 27 1 (f) The board may promulgate such rules and regulations it deems 2 necessary for the proper administration of the provisions of this 3 section, and such rules and regulations may be promulgated on an emer- 4 gency basis if the chair warrants such action to be necessary. 5 (g) If any part of this section, or the application thereof to any 6 person or circumstances shall be held to be invalid, such holding shall 7 not affect, impair or invalidate the remainder of this act but it shall 8 be confined in its operation to the item, clause, sentence, subpara- 9 graph, subdivision or other part of this act directly involved in such 10 holding, or to the person and circumstances therein involved. 11 § 17. The workers' compensation law is amended by adding a new section 12 112-a to read as follows: 13 § 112-a. Audits of employers. 1. (a) Employers in all classes other 14 than the construction class shall be audited not less frequently than 15 biennially and the chair or board may provide for more frequent audits 16 of employers in specified classifications based on factors such as 17 amount of premium, type of business, loss ratios, or other relevant 18 factors. In no event shall employers in the construction class, generat- 19 ing more than the amount of premium required to be experience rated, be 20 audited less frequently than annually. The annual audits required for 21 construction classes may be a physical, onsite review of original 22 payroll records, employee records, checkbooks, cash book (disbursements 23 and receipts), general ledger, contracts, tax returns including quarter- 24 ly payroll filings, and original certificates of insurance. The audit of 25 all employers shall be conducted no more than one hundred twenty days 26 after the expiration of a policy period. At the completion of an audit, 27 if requested by the auditor, the employer or officer of the corporation 28 must print and sign their names on the audit document affirming the 29 accuracy of the information provided therein. As required by section one 30 hundred twelve of this article, employers shall make available all books 31 and records necessary for the payroll verification audit and permit the 32 auditor to make a physical inspection of the employer's operation. If 33 an employer fails to provide reasonable access to all such books and 34 records necessary for a payroll verification audit, including a physical 35 inspection of the employer's operation, the employer shall pay a 36 surcharge to the carrier of two times the most recent estimated annual 37 premium. 38 (b) Employers that fail to provide reasonable access to the carrier 39 for the purpose of conducting an audit shall be reported to the New York 40 compensation insurance rating board. 41 (c) If an employer knowingly understates or knowingly conceals 42 payroll, knowingly misrepresents or knowingly conceals employee duties 43 so as to avoid proper classification for premium calculations, or know- 44 ingly misrepresents or knowingly conceals information pertinent to the 45 computation and application of an experience rating modification factor, 46 said knowing misrepresentations or knowing concealments shall be consid- 47 ered fraudulent practices in violation of applicable provisions of 48 section one hundred fourteen of this article and insurance fraud in 49 violation of applicable provisions of section 176.05 of the penal law. 50 (d) If during the course of an audit conducted under this section, an 51 insurance carrier obtains information indicating a violation of the 52 provisions of paragraph (c) of this subdivision, then the carrier shall 53 report such information to the board. 54 2. This section shall not apply to employers that self-insure or 55 employers that are members of a workers' compensation group self-insured 56 trust.A. 3418 28 1 3. For the purposes of this section, "construction class" means the 2 work or occupation described in "Group 3" of subdivision one of section 3 three of this chapter. 4 § 18. Subdivision 1 of section 117 of the workers' compensation law, 5 as amended by chapter 17 of the laws of 1984, is amended to read as 6 follows: 7 1. The board may adopt reasonable rules consistent with and supple- 8 mental to the provisions of this chapter and the labor law. The [chair-9man] chairperson may make reasonable regulations consistent with the 10 provisions of this chapter and the labor law. The board may not utilize 11 "subject numbers", forms or other informal communications outside of its 12 rules, regulations or decisions to interpret or apply the law. 13 § 19. The opening paragraph and second undesignated paragraph of 14 section 120 of the workers' compensation law, the opening paragraph as 15 amended by chapter 105 of the laws of 2019, and the second undesignated 16 paragraph as amended by chapter 61 of the laws of 1989, are amended to 17 read as follows: 18 It shall be unlawful for any employer or [his or her] such employer's 19 duly authorized agent to discharge, threaten, penalize, or fail to rein- 20 state pursuant to section two hundred three-b of this chapter, or in any 21 other manner discriminate or retaliate against an employee as to [his or22her] such employee's employment (i) because such employee has claimed or 23 attempted to claim compensation from such employer, requested a claim 24 form for injuries received in the course of employment, or claimed or 25 attempted to claim any benefits provided under this chapter [or], (ii) 26 because such employer believes that such employee has claimed or will 27 claim compensation; (iii) because such employee has caused to be insti- 28 tuted or is about to institute a claim for compensation or other benefit 29 under this chapter; (iv) because [he or she] such employee has testified 30 or is about to testify in a proceeding under this chapter [and no other31valid reason is shown to exist for such action by the employer]; or (v) 32 because such employee has otherwise exercised rights protected under 33 this chapter. For purposes of this provision, "because" shall be inter- 34 preted to require that the listed activity was at least a contributing 35 factor to the employer's action. 36 Any complaint alleging such an unlawful discriminatory practice must 37 be filed within two years of the commission of such practice. Upon find- 38 ing that an employer has violated this section, the board shall make an 39 order that any employee so discriminated against shall be restored to 40 employment or otherwise restored to the position or privileges [he or41she] such employee would have had but for the discrimination and shall 42 be compensated by [his or her] such employee's employer for any loss of 43 compensation arising out of such discrimination together with such fees 44 or allowances for services rendered by an attorney or licensed represen- 45 tative as fixed by the board. Any employer who violates this section 46 shall be liable to a penalty of not less than one [hundred] thousand 47 dollars or more than [five hundred] ten thousand dollars, as may be 48 determined by the board. All such penalties shall be paid [into the49state treasury] to the employee so discriminated against. All penal- 50 ties, compensation and fees or allowances shall be paid solely by the 51 employer. The employer alone and not [his or her] such employer's carri- 52 er shall be liable for such penalties and payments. Any provision in an 53 insurance policy undertaking to relieve the employer from liability for 54 such penalties and payments shall be void.A. 3418 29 1 § 20. Paragraphs (a) and (b) of subdivision 1, subdivision 7 and 2 subdivision 11 of section 137 of the workers' compensation law, as added 3 by chapter 473 of the laws of 2000, are amended to read as follows: 4 (a) A copy of each report of independent medical examination on behalf 5 of an employer or carrier shall be submitted by the practitioner on the 6 same day and in the same manner to the board, the insurance carrier, the 7 claimant's attending physician or other attending practitioner, the 8 claimant's representative and the claimant. 9 (b) If a practitioner who has performed or will be performing an inde- 10 pendent medical examination of a claimant on behalf of an employer or 11 carrier receives a request for information regarding the claimant, 12 including faxed or electronically transmitted requests, the practitioner 13 shall submit a copy of the request for information to the board within 14 ten days of receipt of the request. Nothing in this subdivision shall be 15 construed to abrogate the attorney-client privilege. 16 7. The claimant shall receive notice by mail of the scheduled inde- 17 pendent medical examination on behalf of an employer or carrier at least 18 seven business days prior to such examination. Such notice shall advise 19 the claimant if the practitioner intends to record or video tape the 20 examination, and shall advise the claimant of their right to video tape 21 or otherwise record the examination. Claimants shall be advised of their 22 right to be accompanied during the exam by an individual or individuals 23 of their choosing. 24 11. At the time of the independent medical examination on behalf of an 25 employer or carrier the claimant shall receive a notice from the entity 26 performing the independent medical examination, on a form which shall be 27 approved and promulgated by the chair, stating the rights and obli- 28 gations of the claimant and the practitioner with respect to such exam, 29 and such notice shall include but not be limited to a statement that the 30 claimant's receipt of benefits could be denied, terminated, or reduced 31 as a result of a determination which may be based upon the medical eval- 32 uation made after such independent medical examination, and the claim- 33 ant's rights to challenge or appeal such a determination. 34 § 21. The workers' compensation law is amended by adding a new section 35 208-a to read as follows: 36 § 208-a. Cost-of-living adjustments of disability benefits in certain 37 cases. 1. Notwithstanding any other provision of law, effective July 38 first, two thousand twenty-six, in addition to any other amount received 39 pursuant to this article as disability benefits, an employee with a 40 permanent total disability or the beneficiary-dependent of such employee 41 shall be entitled to an additional allowance, to be known as a cost-of- 42 living adjustment allowance, payable annually. 43 2. The cost-of-living adjustment allowance shall be computed by apply- 44 ing an adjustment for regional costs of living and shall be based on 45 fifty percent of the annual increase in the consumer price index as 46 promulgated by the United States department of labor. 47 § 22. This act shall take effect immediately.
