Provides that determinations by the workers' compensation board shall not be given collateral estoppel effect in any other action or proceeding arising out of the same occurrence, other than the determination of the existence of an employer employee relationship.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A10349
SPONSOR: Rules (Joyner)
TITLE OF BILL:
An act to amend the workers' compensation law, in relation to enacting
the justice for injured workers act
PURPOSE OR GENERAL IDEA OF BILL:
To correct recent court decisions that granted preclusive effect to
decisions of the Workers' Compensation Board (WCB), barring injured
workers from seeking justice through the courts because of an adminis-
trative decision of the WCB.
SUMMARY OF PROVISIONS:
Section one of the bill provides the title of the Justice for Injured
Section two of the bill adds a new section 118-a to the Workers' Compen-
sation Law that would bar a court or other forum from granting preclu-
sive or collateral estoppel effect to decisions by the Workers' Compen-
sation Board in any other action or proceeding.
Section three of the bill adds a new paragraph (b) to section 11 of the
Workers' Compensation Law that would bar a court or other forum from
granting preclusive or collateral estoppel effect to decisions by the
Workers' Compensation Board in any other action or proceeding.
Section four of the bill sets the effective date.
The Justice for Injured Workers Act ("JIWA") will bar determinations
made in Worker Compensation proceedings from having preclusive effect in
trials by a worker whose injuries are caused by negligence or wrongful
conduct of third parties (i.e. parties other than the worker's employ-
Over 100 years ago, New York enacted a Worker's Compensation hearing
System with a "grand bargain" to address the plague of on-the-job inju-
ries suffered by workers. The bargain: workers surrendered their consti-
tutional rights to sue their employer for causing workplace injuries
and, in exchange, employers provided insurance that guaranteed medical
care and cash benefits for such injuries, regardless of fault.
To ensure that this "no fault" system provided quick and consistent
benefits, disputes between an employer and an employee to the existence
or extent of an alleged workplace injury are resolved in lightning-fast
administrative hearings before a Worker's Compensation Law Judge
("WCLJ"). These hearings sacrifice basic procedures and evidentiary
rules of trials to swiftly decide the claims. The hearings do not
address fault; do not allow the parties to take depositions; do not
provide a way to compel witnesses to testify; do not allow for exchanges
of documents before a hearing; do not afford workers the right to order
medical tests or elicit testimony from physicians; and do not give
credence to injured workers' descriptions of their alleged injuries.
Hearsay is allowed as evidence, and witnesses have strict time limits in
which to provide testimony. Worker's Compensation hearings often
consist of a cursory examination of medical records, and they do not
consist of a searching review for truth, which occurs in a jury trial.
This is why, for almost 80 years, when an injured worker filed a "third-
party action" against someone other than the employer for wrongfully
causing a workplace injury, courts rejected attempts by defendants to
apply collateral estoppel. Courts refused to use, as purportedly conclu-
sive "facts" for purposes of the third-party litigation, the "findings"
from Worker's Compensation hearings. But in 1989, this all changed. The
New York Appellate Division for the Second Department held that a Work-
er's Compensation hearing determination collaterally estopped the worker
from pursuing a subsequent action against a non-employer third-party and
dismissed the action. In the wake of this decision, other New York
courts began to apply the collateral estoppel doctrine to findings by
WCLJs to dismiss third-party actions. Workers suffered.
In 2013, the New York Court of Appeals held that the collateral estoppel
doctrine was being used to deny an injured worker his right to a fair
trial. This ruling, in Auqui v Seven Thirty One Ltd. Partnership, 22
NY3d 246, 25557
2013, reinforced the concept that the party responsi-
ble for causing an injured worker's injuries remains obligated to pay
for lost wages and medical expenses.
Unfortunately, Auqui left open the possibility that courts could apply
the collateral estoppel doctrine to a prior Worker's Compensation deci-
sion and deny injured workers the right to have a jury rule on their
This legislation is needed to ensure that findings from cursory Worker's
Compensation Board hearings do not prevent workers from exercising their
constitutional right to a jury trial.
PRIOR LEGISLATIVE HISTORY:
STATE OF NEW YORK
May 13, 2022
Introduced by COMMITTEE ON RULES -- (at request of M. of A. Joyner) --
read once and referred to the Committee on Labor
AN ACT to amend the workers' compensation law, in relation to enacting
the justice for injured workers act
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. This act shall be known as the "justice for injured workers
3 § 2. The workers' compensation law is amended by adding a new section
4 118-a to read as follows:
5 § 118-a. Effect of findings and determinations in subsequent
6 proceedings. With respect to an action for a workers' compensation claim
7 permissible under this chapter, no finding or decision by the workers'
8 compensation board, judge or other arbiter shall be given collateral
9 estoppel effect in any other action or proceeding arising out of the
10 same occurrence, other than the determination of the existence of an
11 employer employee relationship.
12 § 3. Section 11 of the workers' compensation law, as amended by chap-
13 ter 635 of the laws of 1996, the opening paragraph as amended by section
14 8 of part SS of chapter 59 of the laws of 2017, the fifth undesignated
15 paragraph as added by chapter 49 of the laws of 1999 and the closing
16 paragraph as added by chapter 392 of the laws of 2008, is amended to
17 read as follows:
18 § 11. Alternative remedy. 1. The liability of an employer prescribed
19 by the last preceding section shall be exclusive and in place of any
20 other liability whatsoever, to such employee, his or her personal repre-
21 sentatives, spouse, parents, dependents, distributees, or any person
22 otherwise entitled to recover damages, contribution or indemnity, at
23 common law or otherwise, on account of such injury or death or liability
24 arising therefrom, except that if an employer fails to secure the
25 payment of compensation for his or her injured employees and their
26 dependents as provided in section fifty of this chapter, an injured
27 employee, or his or her legal representative in case of death results
28 from the injury, may, at his or her option, elect to claim compensation
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
 is old law to be omitted.
A. 10349 2
1 under this chapter, or to maintain an action in the courts for damages
2 on account of such injury; and in such an action it shall not be neces-
3 sary to plead or prove freedom from contributory negligence nor may the
4 defendant plead as a defense that the injury was caused by the negli-
5 gence of a fellow servant nor that the employee assumed the risk of his
6 or her employment, nor that the injury was due to the contributory
7 negligence of the employee. The liability under this chapter of The New
8 York Jockey Injury Compensation Fund, Inc. created under section two
9 hundred twenty-one of the racing, pari-mutuel wagering and breeding law
10 shall be limited to the provision of workers' compensation coverage to
11 jockeys, apprentice jockeys, exercise persons, and at the election of
12 the New York Jockey Injury Compensation Fund, Inc., with the approval of
13 the New York state gaming commission, employees of licensed trainers or
14 owners licensed under article two or four of the racing, pari-mutuel
15 wagering and breeding law and any statutory penalties resulting from the
16 failure to provide such coverage.
17 For purposes of this section the terms "indemnity" and "contribution"
18 shall not include a claim or cause of action for contribution or indem-
19 nification based upon a provision in a written contract entered into
20 prior to the accident or occurrence by which the employer had expressly
21 agreed to contribution to or indemnification of the claimant or person
22 asserting the cause of action for the type of loss suffered.
23 An employer shall not be liable for contribution or indemnity to any
24 third person based upon liability for injuries sustained by an employee
25 acting within the scope of his or her employment for such employer
26 unless such third person proves through competent medical evidence that
27 such employee has sustained a "grave injury" which shall mean only one
28 or more of the following: death, permanent and total loss of use or
29 amputation of an arm, leg, hand or foot, loss of multiple fingers, loss
30 of multiple toes, paraplegia or quadriplegia, total and permanent blind-
31 ness, total and permanent deafness, loss of nose, loss of ear, permanent
32 and severe facial disfigurement, loss of an index finger or an acquired
33 injury to the brain caused by an external physical force resulting in
34 permanent total disability.
35 For purposes of this section "person" means any individual, firm,
36 company, partnership, corporation, joint venture, joint-stock associ-
37 ation, association, trust or legal entity.
38 The liability under this chapter of the New York black car operators'
39 injury compensation fund, inc. shall be limited to: (i) securing the
40 payment of workers' compensation in accordance with article six-F of the
41 executive law to black car operators, as defined in such article, whose
42 injury arose out of and in the course of providing services for a
43 central dispatch facility, as defined in such article, that is a regis-
44 tered member of such fund, and (ii) any statutory penalty resulting from
45 the failure to secure such payment. The liability under this chapter of
46 a central dispatch facility, as defined in article six-F of the execu-
47 tive law, that is a registered member of the New York black car opera-
48 tors' injury compensation fund, inc. that shall be limited to remaining
49 a registered member in good standing of such fund and any statutory
50 penalty, including loss of immunity provided by this section, resulting
51 from the failure to become or remain a registered member in good stand-
52 ing of such fund, except, however, that such central dispatch facility
53 shall be subject to the provisions of section one hundred thirty-one of
54 this chapter and shall be liable for any payments for which it may
55 become responsible pursuant to such section or pursuant to section four-
56 teen-a of this [chapter] article.
A. 10349 3
1 The liability under this chapter of the New York independent livery
2 driver benefit fund, inc. shall be limited to: (i) securing the payment
3 of workers' compensation coverage to cover those matters required by
4 article six-G of the executive law for independent livery drivers, as
5 defined in such article, whose injury arose out of and in the course of
6 providing covered services for a livery base, as defined in such arti-
7 cle, that is a registered member of such fund, and (ii) any statutory
8 penalty resulting from the failure to secure such payment.
9 2. Determination by the board shall not be given collateral estoppel
10 effect in any other action or proceeding arising out of the same occur-
11 rence, other than the determination of the existence of an employer
12 employee relationship.
13 § 4. This act shall take effect immediately.