Provides that benefits for partially disabled workers who have actual earnings shall be based on such earnings; provides that benefits for partially disabled workers who have no actual earnings shall be based on their wage earning capacity.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A5561
SPONSOR: Titus TITLE OF BILL: An act to amend the workers' compensation law, in
relation to establishing statutory guidelines for return to work by
partially disabled workers
PURPOSE OR GENERAL IDEA OF BILL:
This would define the circumstances under which a partially disabled
worker must seek employment as a condition for receipt of workers'
compensation benefits.
SUMMARY OF PROVISIONS:
This bill would amend § 15 of the Workers' Compensation Law to provide
that the wage earning capacity of an injured employee in cases of
partial disability will be determined by the injured employees actual
earnings. It would also provide that where there are no actual earnings,
the Workers' Compensation Board will determine the wage earning capaci-
ty, taking into consideration the nature of the injury, physical impair-
ment, and other relevant factors; the wage earning capacity may not be
set in excess of seventy-five percent of the injured employee's former
full time actual earnings. The bill would define voluntary withdrawal
from the labor market as separation from employment for reasons other
than the compensable injury and provide that the Board may decline to
award compensation if it finds the injured employee voluntarily withdrew
from the labor market. It the Board finds voluntary withdrawal from the
labor market, it may award benefits if the injured employee subsequently
attaches to the labor market.
JUSTIFICATION:
The Workers' Compensation Law provides that in cases of partial disabil-
ity, "the board may in the interest of justice fix such wage earning
capacity as shall be reasonable, but not in excess of seventy-five per
centum of the injured worker's former full time actual earnings, having
due regard to the nature of his injury and his physical impairment."
(WCL 15(5-a)). The statute recognizes that a partially disabled worker
retains the ability to do some work, and provides compensation only for
the loss of wage earning capacity. No compensation is payable for the
wage earning capacity the worker retains. If a partially disabled worker
returns to work, benefits are awarded based on his or her actual earn-
ings. In the absence of a return to work, the Board must estimate the
loss of wage earning capacity and award benefits accordingly (WCL s
15(5a)). The law does not identify the circumstances in which a partial-
ly disabled worker must seek employment as a condition of receiving
benefits.
The lack of a statutory standard has resulted in substantial litigation
before the Workers' Compensation Board and in the Courts. The issue was
considered by a sharply divided Court of Appeals in Matter of Zamora v.
New York Neurologic, 19 N.Y.3d 186, 970 N.E.2d 823, 947 N.Y.S.2d 788
(2012). The Court held that the Board could require non-working,
partially disabled claimants to show proof of labor market attachment as
a condition of receiving benefits, but established no standards by which
to determine if an injured worker is attached to the labor market. By
contrast, the Unemployment Insurance Law specifically states when work
must be sought as a condition of benefits and establishes a statutory
standard for adequate attachment to the labor market (Labor Law SS 591,
593).
This bill would provide a statutory standard for labor market attachment
in workers' compensation claims. It defines a "voluntary withdrawal from
the labor market" as one in which the worker's separation from employ-
ment was unrelated to the compensable injury. It would authorize the
Board to terminate compensation in cases of voluntary withdrawal from
the labor market, and otherwise require the Board to award benefits in
accordance with the statute.
It would further permit the Board to award benefits in cases of volun-
tary withdrawal from the labor market where the claimant is subsequently
attached to the labor market through participation in: (1) one of New
York State's Department of Labor's reemployment services, (2) the
services offered by a One-Stop Career Center, (3) a retraining program,
(4) a rehabilitation program by VESID or other board approved rehabili-
tation program, (5) a job service commonly utilized to secure work with-
in a specific industry, or (6) enrollment and full time attendance in an
accredited educational institution to pursue employment within the work
restrictions.
Overall, this would preserve and codify the requirement of a causal
connection between the injury and the loss of earnings, encourage return
to work, expedite delivery of benefits, and reduce litigation.
PRIOR LEGISLATIVE HISTORY:
2014: A.7961 reported to Codes
FISCAL IMPLICATIONS:
None.
EFFECTIVE DATE:
This act shall take effect immediately.
