Provides the carrier or employer a credit against permanent partial disability benefits for temporary partial disability payments made in excess of 130 weeks.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A8950
SPONSOR: Reyes TITLE OF BILL:
An act to amend the workers' compensation law, in relation to providing
the carrier or employer a credit against permanent partial disability
benefits for temporary partial disability payments made in excess of 130
weeks
PURPOSE:
This bill clarifies the legislature's intent to provide carriers a right
to credit against a non-schedule permanent partial disability award.
SUMMARY OF PROVISIONS:
Section 1: Subdivision 3 of subsection (w) of section 15 of the workers'
compensation law, chapter 591 of the laws of 2017, is amended to simpli-
fy the safety-valve process to give the carrier/employer a credit
against permanent partial disability benefits for temporary partial
disability payments made in excess of 130 weeks.
Section 2: This act shall take effect immediately
JUSTIFICATION:
This bill clarifies the legislature's intent to provide carriers a right
to credit against a non-schedule permanent partial disability award when
they have (1) paid in excess of 130 weeks of temporary partial disabili-
ty benefits pursuant to subdivision 5 of section 15 of the workers'
compensation law and (2) the injured worker has reached maximum medical
improvement.
In practice, the Workers' Compensation Board is misinterpreting the
intent of statute, permitting carriers to take credit by counting 130
calendar weeks from the date of injury, even if the claimant has not
lost time from work for all, or any, of those first 130 weeks. Thus, a
claimant who remained working and subsequently loses time from work, is
unfairly penalized. The Workers' Compensation Board has also made it
difficult for claimants to obtain rulings on the issue of whether they
have reached maximum medical improvement prior to 130 weeks from the
date of injury, creating a due process concern that this amendment seeks
to resolve.
FISCAL IMPACT:
None,
EFFECTIVE DATE:
This act shall take effect immediately.
STATE OF NEW YORK
________________________________________________________________________
8950
IN ASSEMBLY
January 30, 2024
___________
Introduced by M. of A. REYES -- read once and referred to the Committee
on Labor
AN ACT to amend the workers' compensation law, in relation to providing
the carrier or employer a credit against permanent partial disability
benefits for temporary partial disability payments made in excess of
130 weeks
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Paragraph w of subdivision 3 of section 15 of the workers'
2 compensation law, as amended by section 1 of subpart A of part NNN of
3 chapter 59 of the laws of 2017, is amended to read as follows:
4 w. Other cases. In all other cases of permanent partial disability,
5 the compensation shall be sixty-six and two-thirds percent of the
6 difference between the injured employee's average weekly wages and his
7 or her wage-earning capacity thereafter in the same employment or other-
8 wise. Compensation under this paragraph shall be payable during the
9 continuance of such permanent partial disability, without the necessity
10 for the claimant who is entitled to benefits at the time of classifica-
11 tion to demonstrate ongoing attachment to the labor market, but subject
12 to reconsideration of the degree of such impairment by the board on its
13 own motion or upon application of any party in interest however, all
14 compensation payable under this paragraph shall not exceed (i) five
15 hundred twenty-five weeks in cases in which the loss of wage-earning
16 capacity is greater than ninety-five percent; (ii) five hundred weeks in
17 cases in which the loss of wage-earning capacity is greater than ninety
18 percent but not more than ninety-five percent; (iii) four hundred seven-
19 ty-five weeks in cases in which the loss of wage-earning capacity is
20 greater than eighty-five percent but not more than ninety percent; (iv)
21 four hundred fifty weeks in cases in which the loss of wage-earning
22 capacity is greater than eighty percent but not more than eighty-five
23 percent; (v) four hundred twenty-five weeks in cases in which the loss
24 of wage-earning capacity is greater than seventy-five percent but not
25 more than eighty percent; (vi) four hundred weeks in cases in which the
26 loss of wage-earning capacity is greater than seventy percent but not
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD13517-01-3
A. 8950 2
1 more than seventy-five percent; (vii) three hundred seventy-five weeks
2 in cases in which the loss of wage-earning capacity is greater than
3 sixty percent but not more than seventy percent; (viii) three hundred
4 fifty weeks in cases in which the loss of wage-earning capacity is
5 greater than fifty percent but not more than sixty percent; (ix) three
6 hundred weeks in cases in which the loss of wage-earning capacity is
7 greater than forty percent but not more than fifty percent; (x) two
8 hundred seventy-five weeks in cases in which the loss of wage-earning
9 capacity is greater than thirty percent but not more than forty percent;
10 (xi) two hundred fifty weeks in cases in which the loss of wage-earning
11 capacity is greater than fifteen percent but not more than thirty
12 percent; and (xii) two hundred twenty-five weeks in cases in which the
13 loss of wage-earning capacity is fifteen percent or less. For a claimant
14 with a date of accident or disablement after the effective date of the
15 chapter of the laws of two thousand [seventeen] twenty-three that
16 amended this subdivision, where the carrier or employer has [provided]
17 paid one hundred thirty weeks of compensation pursuant to subdivision
18 five of this section [beyond one hundred thirty weeks from the date of
19 accident or disablement], all subsequent weeks in which compensation was
20 paid solely pursuant to subdivision five shall be considered to be bene-
21 fit weeks for purposes of this section, with the carrier or employer
22 receiving credit for all such subsequent weeks against the amount of
23 maximum benefit weeks when permanent partial disability under this
24 section is determined. In the event of payment for intermittent tempo-
25 rary partial disability paid after one hundred thirty weeks from the
26 date of accident or disablement, such time shall be reduced to a number
27 of weeks, for which the carrier will receive a credit against the maxi-
28 mum benefit weeks. For a claimant with a date of accident or disablement
29 after the effective date of the chapter of the laws of two thousand
30 [seventeen] twenty-three that amended this subdivision, when permanency
31 is at issue, and a claimant has submitted medical evidence that he or
32 she is not at maximum medical improvement, [and the carrier has produced
33 or has had a reasonable opportunity to produce an independent medical
34 examination concerning maximum medical improvement,] and the board has
35 determined that the claimant is not yet at maximum medical improvement,
36 the carrier shall not receive a credit for benefit weeks prior to a
37 finding that the claimant has reached maximum medical improvement[, at
38 which time the carrier shall receive credit for any weeks of temporary
39 disability paid to claimant after such finding against the maximum bene-
40 fit weeks awarded under this subdivision]. For those claimants classi-
41 fied as permanently partially disabled who no longer receive indemnity
42 payments because they have surpassed their number of maximum benefit
43 weeks, the following provisions will apply:
44 (1) There will be a presumption that medical services shall continue
45 notwithstanding the completion of the time period for compensation set
46 forth in this section and the burden of going forward and the burden of
47 proof will lie with the carrier, self-insured employer or state insur-
48 ance fund in any application before the board to discontinue or suspend
49 such services. Medical services will continue during the pendency of any
50 such application and any appeals thereto.
51 (2) The board is directed to promulgate regulations that establish an
52 independent review and appeal by an outside agent or entity of the
53 board's choosing of any administrative law judge's determination to
54 discontinue or suspend medical services before a final determination of
55 the board.
56 § 2. This act shall take effect immediately.
