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A07045 Summary:

BILL NOA07045
 
SAME ASSAME AS S05302
 
SPONSORBronson
 
COSPNSRHevesi, Steck, Simon, Joyner
 
MLTSPNSR
 
Rpld 12, 25 sub 2-b, amd Work Comp L, generally
 
Relates to providing access to the workers' compensation system, timely and meaningful wage replacement benefits, and medical treatment; and to improving efficiency of the system and cost savings.
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A07045 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          7045
 
                               2019-2020 Regular Sessions
 
                   IN ASSEMBLY
 
                                      April 4, 2019
                                       ___________
 
        Introduced  by M. of A. BRONSON -- read once and referred to the Commit-
          tee on Labor
 
        AN ACT to amend the workers' compensation law, in relation to  providing
          access to the workers' compensation system, timely and meaningful wage
          replacement  benefits, and medical treatment and to improve efficiency
          of the system and cost savings; and to repeal  certain  provisions  of
          the workers' compensation law relating thereto
 
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
 
     1    Section 1. The opening paragraph of section 11 of the workers' compen-
     2  sation law, as amended by section 8 of part SS of chapter 59 of the laws
     3  of 2017, is amended to read as follows:
     4    The liability of an employer prescribed by the last preceding  section
     5  shall  be  exclusive  and in place of any other liability whatsoever, to
     6  such employee, his or her  personal  representatives,  spouse,  parents,
     7  dependents,  distributees,  or  any person otherwise entitled to recover
     8  damages, contribution or indemnity,  at  common  law  or  otherwise,  on
     9  account  of  such injury or death or liability arising therefrom, except
    10  [that if an] in the following events: (i) the employer's violation of an
    11  applicable statute or regulation involving workplace safety was a proxi-
    12  mate cause of the employee's injury or death; (ii) the employee's  bene-
    13  fits  have  been terminated pursuant to paragraph w of subdivision three
    14  of section fifteen of this article;  or  (iii)  the  employer  fails  to
    15  secure  the payment of compensation for his or her injured employees and
    16  their dependents as provided in section fifty of this article.  In  such
    17  events,  an injured employee, or his or her legal representative in case
    18  of death results from the injury, may, at his or her  option,  elect  to
    19  claim  compensation  under this chapter, or to maintain an action in the
    20  courts for damages on account of such injury[; and in such an action  it
    21  shall  not  be  necessary  to  plead  or prove freedom from contributory
    22  negligence nor may the defendant plead as a defense that the injury  was

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD10935-01-9

        A. 7045                             2

     1  caused  by  the  negligence  of  a  fellow servant nor that the employee
     2  assumed the risk of his or her employment, nor that the injury  was  due
     3  to  the  contributory  negligence  of  the employee.] where an action is
     4  brought pursuant to the employee's benefits being terminated pursuant to
     5  paragraph w of subdivision three of section fifteen of this article, any
     6  applicable statute of limitations shall be tolled from the date of inju-
     7  ry  until  the date the employee's benefits are terminated. The employer
     8  shall be entitled to take credit for compensation paid under this  chap-
     9  ter  against  any damages awarded in an action brought in the courts for
    10  damages. The liability under this chapter of The New York Jockey  Injury
    11  Compensation  Fund, Inc. created under section two hundred twenty-one of
    12  the racing, pari-mutuel wagering and breeding law shall  be  limited  to
    13  the  provision  of workers' compensation coverage to jockeys, apprentice
    14  jockeys, exercise persons, and at the election of the  New  York  Jockey
    15  Injury  Compensation Fund, Inc., with the approval of the New York state
    16  gaming commission, employees of licensed  trainers  or  owners  licensed
    17  under article two or four of the racing, pari-mutuel wagering and breed-
    18  ing  law  and  any  statutory  penalties  resulting  from the failure to
    19  provide such coverage.
    20    § 2. Section 12 of the workers' compensation law is REPEALED.
    21    § 3. Subdivisions (a), (b) and (g)  of  section  13  of  the  workers'
    22  compensation law, subdivision (a) as amended by chapter 6 of the laws of
    23  2007,  the opening paragraph of subdivision (a) as amended by chapter 23
    24  of the laws of 2016, subdivision (b) as amended by chapter  113  of  the
    25  laws  of  1946 and subdivision (g) as separately amended by chapters 834
    26  and 922 of the laws of 1990, are amended to read as follows:
    27    (a) The employer shall promptly provide for an injured  employee  such
    28  medical,  dental, surgical, optometric or other attendance or treatment,
    29  nurse and hospital service,  medicine,  optometric  services,  crutches,
    30  eye-glasses,   false   teeth,  artificial  eyes,  orthotics,  prosthetic
    31  devices, functional assistive and adaptive  devices  and  apparatus  for
    32  such  period  as the nature of the injury or the process of recovery may
    33  require. The employer shall be liable for the payment of the expenses of
    34  medical, dental, surgical, optometric or other attendance or  treatment,
    35  nurse  and  hospital  service,  medicine, optometric services, crutches,
    36  eye-glasses,  false  teeth,  artificial  eyes,   orthotics,   prosthetic
    37  devices,  functional  assistive  and  adaptive devices and apparatus, as
    38  well as artificial members of the body or other  devices  or  appliances
    39  necessary in the first instance to replace, support or relieve a portion
    40  or  part of the body resulting from and necessitated by the injury of an
    41  employee, for such period as the nature of the injury or the process  of
    42  recovery may require, and the employer shall also be liable for replace-
    43  ments  or  repairs  of such artificial members of the body or such other
    44  devices, eye-glasses, false teeth, artificial eyes, orthotics, prosthet-
    45  ic devices, functional assistive  and  adaptive  devices  or  appliances
    46  necessitated by ordinary wear or loss or damage to a prosthesis, with or
    47  without bodily injury to the employee. Damage to or loss of a prosthetic
    48  device  shall  be  deemed  an  injury except that no disability benefits
    49  shall be payable with respect to such injury under  section  fifteen  of
    50  this  article. Such a replacement or repair of artificial members of the
    51  body or such other devices, eye-glasses, false teeth,  artificial  eyes,
    52  orthotics, prosthetic devices, functional assistive and adaptive devices
    53  or  appliances or the providing of medical treatment and care as defined
    54  herein shall not constitute the payment of  compensation  under  section
    55  twenty-five-a  of  this  article.  All  fees  and other charges for such
    56  treatment and services shall be limited to such charges  as  prevail  in

        A. 7045                             3
 
     1  the  same  community  for similar treatment of injured persons of a like
     2  standard of living.
     3    The  chair  shall [prepare and] establish a committee to determine the
     4  schedule for the state, or schedules limited to defined  localities,  of
     5  charges  and fees for such medical treatment and care, and including all
     6  medical, dental, surgical, optometric or other attendance or  treatment,
     7  nurse  and  hospital  service,  medicine, optometric services, crutches,
     8  eye-glasses,  false  teeth,  artificial  eyes,   orthotics,   prosthetic
     9  devices,  functional  assistive  and  adaptive devices and apparatus [in
    10  accordance with and to be subject to change pursuant to rules promulgat-
    11  ed by the chair. Before preparing such schedule for the state or  sched-
    12  ules for limited localities the chair shall request]. The members of the
    13  committee  shall be the president of the medical society of the state of
    14  New York [and], the president of the New York state osteopathic  medical
    15  society  [to submit to him or her a report on], the president of the New
    16  York state society of orthopedists, the president of the New York  state
    17  AFL/CIO, the president of the business council of the state of New York,
    18  an  individual  designated  by the senate majority leader, an individual
    19  designated by the speaker of the assembly, and the chair of  the  board.
    20  The  committee  shall  meet annually in order to determine the amount of
    21  remuneration deemed [by such society] to be fair and  adequate  for  the
    22  types  of  medical care to be rendered under this chapter, but consider-
    23  ation shall be given to the view of other  interested  parties.  In  the
    24  case  of  physical  therapy  fees  schedules the chair shall request the
    25  president of a recognized professional association representing physical
    26  therapists in the state of New York  to  submit  to  [him  or  her]  the
    27  committee  a report on the amount of remuneration deemed by such associ-
    28  ation to be fair  and  reasonable  for  the  type  of  physical  therapy
    29  services  rendered  under this chapter, but consideration shall be given
    30  to the views of other interested parties.  The chair shall also  prepare
    31  and  establish a schedule for the state, or schedules limited to defined
    32  localities, of charges and fees for  outpatient  hospital  services  not
    33  covered  under  the  medical fee schedule previously referred to in this
    34  subdivision, to be determined in accordance with and to  be  subject  to
    35  change pursuant to rules promulgated by the chair. Before preparing such
    36  schedule  for  the  state  or schedules for limited localities the chair
    37  shall request the president of the  hospital  association  of  New  York
    38  state  to submit to [him or her] the committee a report on the amount of
    39  remuneration deemed by such association to be fair and adequate for  the
    40  types of hospital outpatient care to be rendered under this chapter, but
    41  consideration  shall  be given to the views of other interested parties.
    42  In the case of occupational  therapy  fees  schedules  the  chair  shall
    43  request  the  president of a recognized professional association repres-
    44  enting occupational therapists in the state of New  York  to  submit  to
    45  [him or her] the committee a report on the amount of remuneration deemed
    46  by  such  association  to be fair and reasonable for the type of occupa-
    47  tional therapy services rendered under this chapter,  but  consideration
    48  shall  be  given  to  the views of other interested parties. The amounts
    49  payable by the employer for such treatment and  services  shall  be  the
    50  fees  and  charges established by such schedule.  Nothing in this sched-
    51  ule, however, shall prevent voluntary payment of amounts higher or lower
    52  than the fees and charges fixed  therein,  but  no  physician  rendering
    53  medical  treatment  or  care,  and no physical or occupational therapist
    54  rendering their respective physical or occupational therapy services may
    55  receive payment in any higher amount unless such  increased  amount  has
    56  been  authorized  by the employer, or by decision as provided in section

        A. 7045                             4
 
     1  thirteen-g of this article. Nothing in this section shall  be  construed
     2  as  preventing the employment of a duly authorized physician on a salary
     3  basis by an authorized compensation medical bureau or laboratory.
     4    (b)  In the case of persons, injured or residing and receiving medical
     5  treatment outside of this state, but entitled to compensation  or  bene-
     6  fits  under  this  chapter, the provisions as to selection of authorized
     7  physicians and the rules and regulations of the board governing  medical
     8  treatment  within  the  state  shall  be inapplicable. In such cases the
     9  employer shall promptly provide all necessary medical treatment and care
    10  but if the employer fail to provide  the  same,  after  request  by  the
    11  injured  employee  such injured employee may do so at the expense of the
    12  employer. The employee shall not  be  entitled  to  recover  any  amount
    13  expended  by  him  for  such  treatment or services unless he shall have
    14  requested the employer to furnish the same and the employer  shall  have
    15  refused  or  neglected  to  do  so,  or  unless the nature of the injury
    16  required such treatment and services and the employer or his superinten-
    17  dent or foreman having knowledge of such injury shall have neglected  to
    18  provide  the same; nor shall any claim for medical or surgical treatment
    19  be valid and enforceable, as against such employer, unless within twenty
    20  days following the first treatment, the physician giving such treatment,
    21  furnish to the employer and the chairman a report  of  such  injury  and
    22  treatment, on a form prescribed by the chairman. The board may, however,
    23  by  the  unanimous vote of a panel of not less than three members quali-
    24  fied to act, excuse the failure to give such notice within  twenty  days
    25  when  it  finds  it  to be in the interest of justice to do so, and may,
    26  subject to the limitations contained in  section  twenty-eight  of  this
    27  [chapter]  article,  make  an  award  for  the  reasonable value of such
    28  medical or surgical treatment. All  fees  and  other  charges  for  such
    29  treatment  and services, whether furnished by the employer or otherwise,
    30  shall be subject to regulation by the board as provided in section twen-
    31  ty-four of this [chapter] article, and shall be limited to such  charges
    32  as  prevail  in  the  same  community  for  similar treatment of injured
    33  persons of a like standard of living.
    34    (g) Every hospital operating in the state shall, within twenty days of
    35  receiving a written request by a  claimant,  claimant's  representative,
    36  employer, carrier or special fund created under this chapter, provide to
    37  such  claimant,  claimant's representative, employer, carrier or special
    38  fund for use in board proceedings the medical records of an employee who
    39  has received treatment in such hospital and  who  is  claiming  benefits
    40  under  this  chapter. Each hospital shall designate at least one officer
    41  or employee who shall be responsible for provision of  such  records  on
    42  written  request, and to whom the board, claimant, claimant's, employer,
    43  carrier representative or special fund may  address  informal  inquiries
    44  regarding provision of such records.
    45    No  hospital  shall be required to produce the records of any claimant
    46  pursuant to this section without receiving  the  cost  of  copying  such
    47  records  as  determined  by  the  chair.  Such cost shall be paid by the
    48  requesting party except that the employer or  carrier  or  special  fund
    49  shall  reimburse  a claimant or claimant's representative the cost of an
    50  initial set of such records where the request is made by a  claimant  or
    51  claimant's  representative.  Should  the hospital not be able to provide
    52  the requested records within twenty days, they shall notify  in  writing
    53  the  party requesting the records of the reason why the records were not
    54  provided and the date on which they will be provided. Such date shall be
    55  within a reasonable period of time, but shall not  exceed  thirty  days.
    56  Failure to either provide the records within twenty days or to provide a

        A. 7045                             5
 
     1  reason why the records have not been provided shall subject the hospital
     2  to  a  fine  of  two hundred dollars which shall be imposed by the chair
     3  payable to the board upon finding that this  subdivision  has  not  been
     4  complied  with.  No hospital shall be required to produce the records of
     5  any claimant without receiving its customary fees or charges for reprod-
     6  uction of such records.  The employer or carrier  shall  file  with  the
     7  board  any hospital or medical records concerning an injured worker that
     8  come into its possession and have not been  previously  filed  with  the
     9  board.
    10    §  4.  Paragraphs  (d), (e) and the closing paragraph of subdivision 4
    11  and subdivision 5 of section 13-a  of  the  workers'  compensation  law,
    12  paragraphs  (d),  (e)  and  the  closing  paragraph  of subdivision 4 as
    13  amended by chapter 473 of the laws of 2000 and subdivision 5 as  amended
    14  by  chapter  6 of the laws of 2007 and as further amended by section 104
    15  of part A of chapter 62 of the laws of 2011,  are  amended  to  read  as
    16  follows:
    17    (d)  The  independent  medical  examiner  on behalf of the employer or
    18  carrier shall provide such reports and shall submit to investigation  as
    19  required by the chair.
    20    (e)  In  order to qualify as admissible medical evidence, for purposes
    21  of adjudicating any claim under this chapter, any  report  submitted  to
    22  the  board  by an independent medical examiner on behalf of the employer
    23  or carrier licensed by the state of New York shall include  the  follow-
    24  ing:
    25    (i) a signed statement certifying that the report is a full and truth-
    26  ful  representation  of  the independent medical examiner's professional
    27  opinion with respect to the claimant's condition[:];
    28    (ii) such examiner's board issued authorization number;
    29    (iii) the name of the individual or entity requesting the examination;
    30    (iv) if applicable, the registration number  as  required  by  section
    31  thirteen-n of this article; and
    32    (v) such other information as the chair may require by regulation.
    33    Any report by an independent medical examiner on behalf of the employ-
    34  er  or  carrier  who  is not authorized, and who performs an independent
    35  medical examination in accordance with paragraph (c)  of  this  subdivi-
    36  sion,  which is to be used as medical evidence under this chapter, shall
    37  include in the report such information as the chair may require by regu-
    38  lation.
    39    (5)  No  claim  for  specialist  consultations,  surgical  operations,
    40  physiotherapeutic or occupational therapy procedures, x-ray examinations
    41  or  special  diagnostic  laboratory tests costing more than one thousand
    42  dollars shall be valid and enforceable, as against such employer, unless
    43  such special services shall have been authorized by the employer  or  by
    44  the  board, or unless such authorization has been unreasonably withheld,
    45  or withheld for a period of more than thirty calendar days from  receipt
    46  of  a  request  for  authorization,  or unless such special services are
    47  required in an emergency, provided, however, that the basis for a denial
    48  of such authorization by the employer must be  based  on  a  conflicting
    49  second  opinion  rendered  by  a  physician authorized by the board. The
    50  board, with the approval of the superintendent  of  financial  services,
    51  shall  issue and maintain a list of pre-authorized procedures under this
    52  section, which shall not be used to deny medical treatment  that  varies
    53  from such list or which occurs outside of the state.
    54    §  5.  Subdivision 1 of section 13-f of the workers' compensation law,
    55  as amended by chapter 353 of the laws of 1990, is  amended  to  read  as
    56  follows:

        A. 7045                             6
 
     1    (1)  Fees for medical services shall be payable only to a physician or
     2  other qualified person permitted  by  sections  thirteen-b,  thirteen-k,
     3  thirteen-l  and thirteen-m of this [chapter] article or other authorized
     4  provider of health care under the education law or the public health law
     5  permitted  to render medical care or treatment under this chapter, or to
     6  the agent, executor or administrator of the estate of such physician  or
     7  such  other  qualified person.  Except as provided in section thirteen-d
     8  of this [chapter] article, no provider of health care rendering  medical
     9  care or treatment to a compensation claimant, shall collect or receive a
    10  fee  from  such  claimant within this state, but shall have recourse for
    11  payment of services rendered only to the employer under  the  provisions
    12  of  this  chapter.    Where  an  issue arises regarding a medical fee, a
    13  provider of health care shall have the rights provided by sections twen-
    14  ty and twenty-three of this article. Any compensation claimant who  pays
    15  a  fee  to a provider of health care for medical care or treatment under
    16  this chapter shall have a cause  of  action  against  such  provider  of
    17  health  care  for  the recovery of the money paid, which cause of action
    18  may be assigned to the chair in trust for the  assigning  claimant.  All
    19  such  assignments  shall  run to the chair. The chair may sue the physi-
    20  cian, or other authorized provider of health care as herein described on
    21  the assigned cause of action  with  the  benefits  and  subject  to  the
    22  provisions  of  existing  law  applying  to such actions by the claimant
    23  himself or herself. Hospitals shall  not  be  entitled  to  receive  the
    24  remuneration  paid to physicians on their staff for medical and surgical
    25  services.
    26    § 6. Subdivisions 1, 2, paragraphs s, t, v and  w  of  subdivision  3,
    27  subdivisions  4, 4-a, 5 and paragraph (a) of subdivision 6 of section 15
    28  of the workers' compensation law, subdivision 1 as  amended  by  chapter
    29  675  of the laws of 1977, subdivision 2 as amended by chapter 161 of the
    30  laws of 1966, paragraph s of subdivision 3 as amended by chapter 204  of
    31  the laws of 1988, paragraph t of subdivision 3 as amended by chapter 774
    32  of the laws of 1945, subparagraphs 1 and 2 of paragraph t of subdivision
    33  3 as amended by chapter 924 of the laws of 1990, paragraph v of subdivi-
    34  sion  3  as  amended  by chapter 364 of the laws of 1989, paragraph w of
    35  subdivision 3 as amended by section 1 of subpart A of part NNN of  chap-
    36  ter  59  of the laws of 2017, subdivision 4 as amended by chapter 168 of
    37  the laws of 1979, subdivision 4-a as amended by chapter 712 of the  laws
    38  of  1941,  subdivision  5 as amended by chapter 161 of the laws of 1966,
    39  paragraph (a) of subdivision 6 as amended by section 7-a of part  GG  of
    40  chapter  57 of the laws of 2013, are amended and a new subdivision 10 is
    41  added to read as follows:
    42    1. Permanent total disability. In case of total disability adjudged to
    43  be permanent sixty-six and two-thirds per centum of the  average  weekly
    44  wages shall be paid to the employee during the continuance of such total
    45  disability.  Loss  of  both  hands,  or both arms, or both feet, or both
    46  legs, or both eyes, or of any two thereof, or inability to  perform  the
    47  full  range  of  sedentary work, or approval for federal social security
    48  disability benefits as a result of the compensable accident  or  occupa-
    49  tional  disease shall, in the absence of conclusive proof to the contra-
    50  ry, constitute permanent total disability.  In all other cases permanent
    51  total disability shall be  determined  in  accordance  with  the  facts.
    52  Notwithstanding any other provision of this chapter, an injured employee
    53  disabled  due  to  the  loss  or total loss of use of both eyes, or both
    54  hands, or both arms, or both feet, or both legs, or of any  two  thereof
    55  shall not suffer any diminution of his compensation by engaging in busi-
    56  ness  or  employment  provided his earnings or wages, when combined with

        A. 7045                             7

     1  his compensation, shall not be in excess of the wage base on  which  the
     2  maximum  weekly compensation benefit is computed under the law in effect
     3  at time of such earning;  further  provided,  that  if  the  combination
     4  exceeds  such  wage  base,  the  compensation  shall be diminished to an
     5  amount which, together with his earnings or wages, shall equal the  wage
     6  base;  and  further  provided  that  the application of this subdivision
     7  shall not result in reduction of compensation which an injured  employee
     8  who  is  disabled  due to the loss or total loss of use of both eyes, or
     9  both hands, or both arms, or both feet, or both legs or of any two ther-
    10  eof, would otherwise be entitled to under any other  provision  of  this
    11  section.
    12    2.  Temporary total disability. In case of temporary total disability,
    13  which shall consist of the injured employee's inability to  perform  his
    14  or  her  at-injury  employment or any modified employment offered by the
    15  employer that is consistent with the  employee's  disability,  sixty-six
    16  and  two-thirds  per centum of the average weekly wages shall be paid to
    17  the  employee  during  the  continuance  thereof,  except  as  otherwise
    18  provided in this chapter.
    19    s.  Partial  loss  or  partial loss of use. Compensation for permanent
    20  partial loss or loss of use of a member [may] shall be for proportionate
    21  loss or loss of use of the member. Compensation  for  permanent  partial
    22  loss  or  loss  of use of an eye shall be awarded on the basis of uncor-
    23  rected loss of vision or corrected loss  of  vision  resulting  from  an
    24  injury whichever is the greater.
    25    t.  Disfigurement. 1. The board may award proper and equitable compen-
    26  sation for serious facial or head disfigurement, not to exceed  [twenty]
    27  thirty  thousand dollars, including a disfigurement continuous in length
    28  which is partially in the facial area and also  extends  into  the  neck
    29  region  as  described  in  [paragraph] subparagraph two [hereof] of this
    30  paragraph.
    31    2. The board, if in its opinion the earning capacity  of  an  employee
    32  has  been  or  may in the future be impaired, may award compensation for
    33  any serious disfigurement in the  region  above  the  sterno  clavicular
    34  articulations  anterior to and including the region of the sterno cleido
    35  mastoid muscles on either side, but no award under subdivisions one  and
    36  two  of  this  section  shall,  in the aggregate, exceed [twenty] thirty
    37  thousand dollars.
    38    3. Notwithstanding any other provision hereof,  two  or  more  serious
    39  disfigurements,  not continuous in length, resulting from the same inju-
    40  ry, if partially in the facial area and partially in the neck region  as
    41  described  in  [paragraph]  subparagraph two [hereof] of this paragraph,
    42  shall be deemed to be a facial disfigurement.
    43    v. Additional compensation for impairment of wage earning capacity  in
    44  certain   permanent  partial  disabilities.  Notwithstanding  any  other
    45  provision of this subdivision, additional compensation shall be  payable
    46  for  impairment of wage earning capacity for any period after the termi-
    47  nation of an award under paragraphs a, b, c, or d, of  this  subdivision
    48  for  the  loss  or  loss of use of [fifty] forty per centum or more of a
    49  member, provided such impairment of earning capacity shall be due solely
    50  thereto. Such additional compensation shall be determined in  accordance
    51  with paragraph w of this subdivision, but shall not cease until the date
    52  the  disabled employee receives or is entitled to receive old-age insur-
    53  ance benefits under the social security act. The additional compensation
    54  shall be reduced by fifty per centum of any amount of  disability  bene-
    55  fits which the disabled employee is receiving or entitled to receive for
    56  the  same  period under the social security act, [and shall cease on the

        A. 7045                             8

     1  date the disabled employee receives or is entitled  to  receive  old-age
     2  insurance  benefits under the social security act]. As soon as practica-
     3  ble after the injury, the worker shall be required to participate  in  a
     4  board  approved rehabilitation program; or shall have demonstrated coop-
     5  eration with efforts to institute such  a  board  approved  program  and
     6  shall  have  been determined by the board not to be a feasible candidate
     7  for rehabilitation; such rehabilitation shall constitute  treatment  and
     8  care as provided in this chapter.
     9    w.  Other  cases.  In all other cases of permanent partial disability,
    10  the compensation shall  be  sixty-six  and  two-thirds  percent  of  the
    11  difference  between  the injured employee's average weekly wages and his
    12  or her wage-earning capacity thereafter in the same employment or other-
    13  wise.  Nothing in this paragraph shall preclude the payment  of  compen-
    14  sation  under  paragraphs  a through t of this subdivision, however, the
    15  employer or carrier shall be entitled to take credit for any payment  of
    16  compensation  under  such  paragraphs  a  through t against a payment of
    17  compensation under this paragraph.  Compensation  under  this  paragraph
    18  shall  be payable during the continuance of such permanent partial disa-
    19  bility, without the necessity for the claimant who is entitled to  bene-
    20  fits  at the time of classification to demonstrate ongoing attachment to
    21  the labor market, but subject to reconsideration of the degree  of  such
    22  impairment  by  the  board  on its own motion or upon application of any
    23  party in interest however, all compensation payable under this paragraph
    24  shall not exceed (i) five hundred twenty-five weeks in  cases  in  which
    25  the  loss  of wage-earning capacity is greater than ninety-five percent;
    26  (ii) five hundred weeks in cases  in  which  the  loss  of  wage-earning
    27  capacity  is  greater  than ninety percent but not more than ninety-five
    28  percent; (iii) four hundred seventy-five weeks in  cases  in  which  the
    29  loss  of  wage-earning  capacity is greater than eighty-five percent but
    30  not more than ninety percent; (iv) four hundred fifty weeks in cases  in
    31  which  the  loss of wage-earning capacity is greater than eighty percent
    32  but not more than eighty-five  percent;  (v)  four  hundred  twenty-five
    33  weeks  in  cases  in  which the loss of wage-earning capacity is greater
    34  than seventy-five percent but not more than eighty  percent;  (vi)  four
    35  hundred  weeks  in  cases  in which the loss of wage-earning capacity is
    36  greater than seventy percent but not  more  than  seventy-five  percent;
    37  (vii)  three  hundred  seventy-five  weeks in cases in which the loss of
    38  wage-earning capacity is greater than sixty percent but  not  more  than
    39  seventy  percent; (viii) three hundred fifty weeks in cases in which the
    40  loss of wage-earning capacity is greater than fifty percent but not more
    41  than sixty percent; (ix) three hundred weeks in cases in which the  loss
    42  of wage-earning capacity is greater than forty percent but not more than
    43  fifty  percent; (x) two hundred seventy-five weeks in cases in which the
    44  loss of wage-earning capacity is greater than  thirty  percent  but  not
    45  more  than forty percent; (xi) two hundred fifty weeks in cases in which
    46  the loss of wage-earning capacity is greater than  fifteen  percent  but
    47  not more than thirty percent; and (xii) two hundred twenty-five weeks in
    48  cases  in  which the loss of wage-earning capacity is fifteen percent or
    49  less. For a claimant with a date of accident or  disablement  after  the
    50  effective  date of [the] section one of subpart A of part NNN of chapter
    51  59 of the laws of two thousand seventeen  [that  amended  this  subdivi-
    52  sion],  where the carrier or employer has provided compensation pursuant
    53  to subdivision five of this section beyond one hundred thirty weeks from
    54  the date of accident or  disablement,  all  subsequent  weeks  in  which
    55  compensation  was  paid  shall  be  considered  to  be benefit weeks for
    56  purposes of this section, with the carrier or employer receiving  credit

        A. 7045                             9
 
     1  for  all  such  subsequent  weeks  against the amount of maximum benefit
     2  weeks when permanent partial disability under  this  section  is  deter-
     3  mined.  In the event of payment for intermittent temporary partial disa-
     4  bility  paid after one hundred thirty weeks from the date of accident or
     5  disablement, such time shall be reduced to a number of weeks, for  which
     6  the carrier will receive a credit against the maximum benefit weeks. For
     7  a  claimant  with  a date of accident or disablement after the effective
     8  date of [the] section one of subpart A of part NNN of chapter 59 of  the
     9  laws  of  two  thousand  seventeen [that amended this subdivision], when
    10  permanency is at issue, and a claimant has  submitted  medical  evidence
    11  that  he  or  she is not at maximum medical improvement, and the carrier
    12  has produced or has had a reasonable opportunity to produce an independ-
    13  ent medical examination concerning maximum medical improvement, and  the
    14  board  has  determined  that  the claimant is not yet at maximum medical
    15  improvement, the carrier shall not receive a credit  for  benefit  weeks
    16  prior  to  a  finding  that  the  claimant  has  reached maximum medical
    17  improvement, at which time the carrier  shall  receive  credit  for  any
    18  weeks  of  temporary  disability  paid  to  claimant  after such finding
    19  against the maximum benefit weeks awarded under  this  subdivision.  For
    20  those  claimants  classified  as  permanently  partially disabled who no
    21  longer receive indemnity payments  because  they  have  surpassed  their
    22  number of maximum benefit weeks, the following provisions will apply:
    23    (1)  There  will be a presumption that medical services shall continue
    24  notwithstanding the completion of the time period for  compensation  set
    25  forth  in this section and the burden of going forward and the burden of
    26  proof will lie with the carrier, self-insured employer or  state  insur-
    27  ance  fund in any application before the board to discontinue or suspend
    28  such services. Medical services will continue during the pendency of any
    29  such application and any appeals thereto.
    30    (2) The board is directed to promulgate regulations that establish  an
    31  independent  review  and  appeal  by  an  outside agent or entity of the
    32  board's choosing of any  administrative  law  judge's  determination  to
    33  discontinue  or suspend medical services before a final determination of
    34  the board.
    35    4. Effect of award. An award made to a claimant under any paragraph of
    36  subdivision three of this section shall in case of  death  arising  from
    37  causes  other  than  the injury be payable to and for the benefit of the
    38  persons following:
    39    a. If there be a surviving spouse and no child of the  deceased  under
    40  the age of eighteen years, to such spouse.
    41    b.  If  there be a surviving spouse and surviving child or children of
    42  the deceased under the age of eighteen years, one-half shall be  payable
    43  to  the  surviving  spouse  and the other half to the surviving child or
    44  children.
    45    The board may in its discretion require the appointment of a  guardian
    46  for the purpose of receiving the compensation of the minor child. In the
    47  absence  of  such  a requirement by the board the appointment for such a
    48  purpose shall not be necessary.
    49    c. If there be a surviving child or children of the deceased under the
    50  age of eighteen years, but no surviving spouse then  to  such  child  or
    51  children.
    52    d.  If there be no surviving spouse and no surviving child or children
    53  of the deceased under the age of eighteen years, then to such  dependent
    54  or  dependents  as defined in section sixteen of this [chapter] article,
    55  as directed by the board; and if there be no such  dependents,  then  to
    56  the  estate  of  such  deceased  [in  an amount not exceeding reasonable

        A. 7045                            10

     1  funeral expenses] as provided in subdivision one of section  sixteen  of
     2  this  [chapter]  article,  or,  if  there be no estate, to the person or
     3  persons paying the funeral expenses of such deceased in  an  amount  not
     4  exceeding  reasonable funeral expenses as provided in subdivision one of
     5  section sixteen of this [chapter] article.
     6    An award for disability may be made after the  death  of  the  injured
     7  employee.
     8    4-a.  Protracted  temporary total disability in connection with perma-
     9  nent partial disability. In  case  of  temporary  total  disability  and
    10  permanent partial disability both resulting from the same injury, if the
    11  temporary total disability continues for a longer period than the number
    12  of  weeks  set  forth in the following schedule, the period of temporary
    13  total disability in excess of such number of weeks shall be added to the
    14  compensation period provided in subdivision three of this section:  Arm,
    15  [thirty-two]  sixteen  weeks;  leg, [forty] twenty weeks; hand, [thirty-
    16  two] sixteen weeks; foot, [thirty-two] sixteen weeks; ear, [twenty-five]
    17  twelve weeks; eye,  [twenty]  ten  weeks;  thumb,  [twenty-four]  twelve
    18  weeks;  first  finger,  [eighteen]  nine  weeks; great toe, [twelve] six
    19  weeks; second finger, [twelve] six weeks;  third  finger,  [eight]  four
    20  weeks;  fourth  finger,  [eight]  four  weeks; toe other than great toe,
    21  [eight] four weeks.
    22    In any case resulting in loss or partial loss  of  use  of  arm,  leg,
    23  hand,  foot,  ear,  eye, thumb, finger or toe, where the temporary total
    24  disability does not extend beyond the periods above mentioned  for  such
    25  injury,  compensation  shall  be  limited  to  the schedule contained in
    26  subdivision three.
    27    5. Temporary partial disability. In case of temporary partial disabil-
    28  ity resulting in decrease of earning capacity, the compensation shall be
    29  two-thirds of the difference  between  the  injured  employee's  average
    30  weekly wages before the accident and his wage earning capacity after the
    31  accident  in the same or other employment, which difference shall be the
    32  injured employee's loss of  wage-earning  capacity.  Compensation  under
    33  this  subdivision shall be payable during the continuance of such tempo-
    34  rary partial disability, without  the  necessity  for  the  claimant  to
    35  demonstrate  ongoing  attachment  to  the labor market, unless the board
    36  finds that the injured employee's loss of wages is wholly  unrelated  to
    37  his or her partial disability.
    38    (a) Compensation for permanent or temporary total disability due to an
    39  accident  or  disablement  resulting  from  an occupational disease that
    40  occurs, (1) on or after January first, nineteen  hundred  seventy-eight,
    41  shall  not  exceed one hundred twenty-five dollars per week, that occurs
    42  (2) on or after July first, nineteen hundred  seventy-eight,  shall  not
    43  exceed  one hundred eighty dollars per week, that occurs (3) on or after
    44  January first, nineteen  hundred  seventy-nine,  shall  not  exceed  two
    45  hundred  fifteen  dollars  per  week,  that  occurs (4) on or after July
    46  first, nineteen hundred  eighty-three,  shall  not  exceed  two  hundred
    47  fifty-five  dollars  per  week,  that occurs (5) on or after July first,
    48  nineteen hundred eighty-four, shall not exceed two hundred  seventy-five
    49  dollars  per  week,  that  occurs  (6)  on or after July first, nineteen
    50  hundred eighty-five, shall not exceed three hundred  dollars  per  week,
    51  that  occurs  (7) on or after July first, nineteen hundred ninety, shall
    52  not exceed three hundred forty dollars per week;  and  in  the  case  of
    53  temporary  total  disability  shall  not be less than thirty dollars per
    54  week and in the case of permanent total disability  shall  not  be  less
    55  than  twenty dollars per week except that if the employee's wages at the
    56  time of injury are less than thirty or twenty dollars per  week  respec-

        A. 7045                            11
 
     1  tively,  he  or she shall receive his or her full weekly wages.  Compen-
     2  sation for permanent or temporary partial disability due to an  accident
     3  or disablement resulting from an occupational disease that occurs (1) on
     4  or  after  [January  first]  March thirteenth, nineteen hundred seventy-
     5  eight, shall not exceed one hundred five dollars per week,  that  occurs
     6  (2)  on  or  after  July first, nineteen hundred eighty-three, shall not
     7  exceed one hundred twenty-five dollars per week, that occurs (3)  on  or
     8  after  July  first,  nineteen  hundred eighty-four, shall not exceed one
     9  hundred thirty-five dollars per week, that occurs (4) on or  after  July
    10  first,  nineteen hundred eighty-five, shall not exceed one hundred fifty
    11  dollars per week, that occurs (5)  on  or  after  July  first,  nineteen
    12  hundred  ninety,  shall  not exceed two hundred eighty dollars per week;
    13  nor be less than twenty dollars per week; except that if the  employee's
    14  wages at the time of injury are less than twenty dollars per week, he or
    15  she  shall  receive  his  or  her  full  weekly wages. In no event shall
    16  compensation when combined with decreased earnings or  earning  capacity
    17  exceed  the amount of wages which the employee was receiving at the time
    18  the injury occurred. Compensation for  permanent  or  temporary  partial
    19  disability,  or  for  permanent  or temporary total disability due to an
    20  accident or disablement resulting  from  an  occupational  disease  that
    21  occurs (1) on or after July first, nineteen hundred ninety-one and prior
    22  to  July  first,  nineteen  hundred  ninety-two,  shall not exceed three
    23  hundred fifty dollars per week; (2) on or  after  July  first,  nineteen
    24  hundred  ninety-two, shall not exceed four hundred dollars per week; nor
    25  be less than forty dollars per week except that if the employee's  wages
    26  at the time of injury are less than forty dollars per week, the employee
    27  shall  receive  his  or  her  full  wages. Compensation for permanent or
    28  temporary partial disability, or for permanent or temporary total  disa-
    29  bility  due to an accident or disablement resulting from an occupational
    30  disease that occurs (1) on or after July first, two thousand seven shall
    31  not exceed five hundred dollars per week, (2) on or  after  July  first,
    32  two thousand eight shall not exceed five hundred fifty dollars per week,
    33  (3)  on  or  after  July  first,  two thousand nine shall not exceed six
    34  hundred dollars per week, and (4) on or after July first,  two  thousand
    35  ten,  and  on  or  after  July  first of each succeeding year, shall not
    36  exceed two-thirds of the New York state average weekly wage for the year
    37  in which it is reported. Compensation for permanent or temporary partial
    38  disability, or for permanent or temporary total  disability  due  to  an
    39  accident  or  disablement  resulting  from  an occupational disease that
    40  occurs on or after July first, two thousand seven shall not be less than
    41  one hundred dollars per week except that if the employee's wages at  the
    42  time  of injury are less than one hundred dollars per week, the employee
    43  shall receive his or her full wages.    Compensation  for  permanent  or
    44  temporary  partial disability, or for permanent or temporary total disa-
    45  bility due to an accident or disablement resulting from an  occupational
    46  disease  that  occurs on or after May first, two thousand thirteen shall
    47  not be less than one hundred fifty dollars per week except that  if  the
    48  employee's  wages  at the time of injury are less than one hundred fifty
    49  dollars per week, the employee shall receive  his  or  her  full  wages.
    50  Compensation  for  permanent  or  temporary  partial  disability, or for
    51  permanent or temporary total disability due to an accident  or  disable-
    52  ment resulting from an occupational disease that occurs on or after July
    53  first of each year commencing in two thousand eighteen shall not be less
    54  than one-sixth of the New York state average weekly wage for the year in
    55  which  it is reported. In no event shall compensation when combined with
    56  decreased earnings [or earning capacity] exceed the amount of wages  the

        A. 7045                            12
 
     1  employee was receiving at the time the injury occurred. Compensation for
     2  permanent or temporary partial disability, or for permanent or temporary
     3  total  disability  due  to  an accident or disablement resulting from an
     4  occupational  disease or injury that occurred as a result of World Trade
     5  Center rescue activity by an employee of a private  voluntary  hospital,
     6  who  passed  a  physical  examination upon employment as a rescue worker
     7  that failed to reveal evidence of a condition  that  was  the  proximate
     8  cause of disablement or occupational disease or injury, shall not exceed
     9  three-quarters  of a claimant's wage on September eleventh, two thousand
    10  one. In no event shall compensation when combined with  decreased  earn-
    11  ings  or  earning  capacity  exceed the amount of wages the employee was
    12  receiving on September eleventh, two thousand one.
    13    10. Cost-of-living  adjustments  of  disability  benefits  in  certain
    14  cases.    (a) Notwithstanding any other provision of law, in addition to
    15  any other amount received pursuant to this article as  disability  bene-
    16  fits,  an  employee with a permanent total disability or the beneficiary
    17  dependent of such employee shall be entitled to an additional allowance,
    18  to be known as a cost-of-living adjustment allowance, payable annually.
    19    (b) The cost-of-living  adjustment  allowance  shall  be  computed  by
    20  applying  an  adjustment for regional costs of living and shall be based
    21  on fifty percent of the annual increase in the consumer price  index  as
    22  promulgated by the United States department of labor.
    23    §  7. Subdivisions 1-a, 1-b, 1-c, 1-d, 2, 2-a, 2-b, and 4-d of section
    24  16 of the workers' compensation law, subdivisions 1-a, 1-b, 1-c and 2 as
    25  amended by chapter 168 of the laws of 1979, subdivisions  1-d,  2-b  and
    26  4-d  as  added by chapter 689 of the laws of 2007 and subdivision 2-a as
    27  amended by chapter 174 of the laws of 1981,  are  amended  and  two  new
    28  subdivisions 1-e and 2-c are added to read as follows:
    29    1-a.  For the purpose of this section, (1) the term dependent blind or
    30  physically disabled as used herein in  relation  to  dependent  children
    31  shall  be  deemed  to mean totally blind or physically disabled children
    32  whose disablement is total and permanent, (2) the term surviving  spouse
    33  shall  be deemed to mean the legal spouse but shall not include a spouse
    34  who has abandoned the deceased, [and] (3) the term  abandoned  shall  be
    35  deemed  to mean such an abandonment as would be sufficient under section
    36  two hundred of the domestic relations law to sustain a judgment of sepa-
    37  ration on that ground, and (4) the terms  "widowhood"  or  "widowerhood"
    38  shall apply to a surviving spouse without regard to remarriage.
    39    1-b. If there be a surviving spouse and no child of the deceased under
    40  the  age  of  eighteen  years and no child of any age dependent blind or
    41  physically disabled, and the death occurs on or after July first,  nine-
    42  teen  hundred  forty-eight, and prior to January first, nineteen hundred
    43  seventy-eight, to such spouse forty per centum of the average  wages  of
    44  the  deceased  during  widowhood or widowerhood [with two years' compen-
    45  sation in one sum, upon remarriage]; and where the death occurred  prior
    46  to  July first, nineteen hundred forty-eight, to such wife (or dependent
    47  husband) thirty per centum of such wages during widowhood (or  dependent
    48  widowerhood) [with two years' compensation in one sum, upon remarriage].
    49    1-c. If there be a surviving spouse and no child of the deceased under
    50  the  age  of  eighteen  years  or under the age of twenty-three years if
    51  enrolled and attending as a full time student in  an  accredited  educa-
    52  tional  institution  and  such  enrollment  and  full time attendance is
    53  certified by such institution and no child of any age dependent blind or
    54  physically disabled, and the death occurs on  or  after  January  first,
    55  nineteen  hundred seventy-eight, to such spouse sixty-six and two-thirds
    56  per centum of the average wages of  the  deceased  during  widowhood  or

        A. 7045                            13
 
     1  widowerhood [with two years' compensation, in one sum, upon remarriage].
     2  Where  the  death  occurs  on  or  after January first, nineteen hundred
     3  seventy-eight, and the spouse is receiving the survivors insurance bene-
     4  fits under the social security act, the death benefit payable under this
     5  section  shall be reduced in accordance with the provisions of table No.
     6  [1] I below by five per centum of the spouse's share of  the  survivor's
     7  insurance benefits under the social security act for each ten dollars of
     8  deceased's average weekly wage in excess of one hundred dollars provided
     9  that  in  no  case  shall such reduction exceed fifty per centum of said
    10  spouse's share of the survivors  insurance  benefits  under  the  social
    11  security act.
    12                                 TABLE No. I
 
    13               Offset provisions applicable in death benefits
    14                   where there is a sole surviving spouse
 
    15  AVERAGE WEEKLY WAGE                               PERCENTAGE OF SPOUSE'S
    16                                                        SHARE OF SURVIVORS
    17                                                        INSURANCE BENEFITS
 
    18  over $100 up to and including $110 ................................... 5
    19  over $110 up to and including $120 .................................. 10
    20  over $120 up to and including $130 .................................. 15
    21  over $130 up to and including $140 .................................. 20
    22  over $140 up to and including $150 .................................. 25
    23  over $150 up to and including $160 .................................. 30
    24  over $160 up to and including $170 .................................. 35
    25  over $170 up to and including $180 .................................. 40
    26  over $180 up to and including $190 .................................. 45
    27  over $190 up to and including $200 .................................. 50
    28  over $200 ........................................................... 50
    29    1-d. If there be a surviving spouse of an employee of a private volun-
    30  tary  hospital killed in a World Trade Center rescue, who passed a phys-
    31  ical examination upon employment as  a  rescue  worker  that  failed  to
    32  reveal  evidence  of  a condition that was the proximate cause of death,
    33  and no child of the deceased under the age of eighteen years,  or  under
    34  the  age  of twenty-three years if enrolled and attending as a full-time
    35  student in an accredited educational institution and such enrollment and
    36  full-time attendance is certified by such institution, and no  child  of
    37  any  age dependent blind or physically disabled, to such spouse seventy-
    38  five per centum of the average wages of the deceased during widowhood or
    39  widowerhood[, with two years' compensation, in one sum, upon remarriage.
    40  Where such death occurs, and  the  spouse  is  receiving  the  survivors
    41  insurance  benefits  under  the  social  security act, the death benefit
    42  payable under this section shall  be  reduced  in  accordance  with  the
    43  provisions  of  table No. I in subdivision one-c of this section by five
    44  per centum of the spouse's share of the  survivor's  insurance  benefits
    45  under the social security act for each ten dollars of deceased's average
    46  weekly  wage  in excess of one hundred dollars; provided that in no case
    47  shall such reduction exceed fifty per centum of such spouse's  share  of
    48  the survivors insurance benefits under the social security act].
    49    1-e. If there be a surviving spouse and no child of the deceased under
    50  the  age  of  eighteen  years  or under the age of twenty-three years if
    51  enrolled and attending as a full-time student in  an  accredited  educa-
    52  tional  institution  and  such  enrollment  and  full-time attendance is
    53  certified by such institution and no child of any age dependent blind or

        A. 7045                            14
 
     1  physically disabled, and the death occurs on or after January first, two
     2  thousand sixteen, to such spouse sixty-six and two-thirds per centum  of
     3  the average wages of the deceased during widowhood or widowerhood.
     4    2. If there be a surviving spouse and a surviving child or children of
     5  the  deceased  under  the  age of eighteen years or a surviving child or
     6  children of any age dependent blind  or  physically  disabled,  and  the
     7  death  occurs  on or after July first, nineteen hundred forty-eight, and
     8  prior to January first, nineteen hundred seventy-eight, to  such  spouse
     9  thirty  per centum of the average wages of the deceased during widowhood
    10  or widowerhood [with two years' compensation in  one  sum,  upon  remar-
    11  riage]; and the additional amount of twenty per centum of such wages for
    12  each  such child until the age of eighteen years or until the removal of
    13  the dependency of the blind or physically disabled child or children; in
    14  case of the subsequent death [or remarriage] of  such  surviving  spouse
    15  any surviving child of the deceased employee, at the time under eighteen
    16  years  of  age  or dependent through mental or physical infirmity, shall
    17  have his compensation increased to thirty per centum of such wages,  and
    18  the same shall be payable until he shall reach the age of eighteen years
    19  or  until  such  dependent  blind or physically disabled condition shall
    20  have been removed; provided that the total amount payable  shall  in  no
    21  case  exceed  sixty-six  and  two-thirds per centum of such wages. [Upon
    22  statutory termination of compensation payments to all such children, the
    23  compensation of the surviving spouse shall be  increased  to  forty  per
    24  centum  of such wages with two years' compensation, at such rate, in one
    25  sum, upon remarriage.]
    26    If there be a surviving wife (or dependent husband)  and  any  of  the
    27  aforementioned  surviving children, and the death occurred prior to July
    28  first, nineteen hundred forty-eight, to such wife (or dependent husband)
    29  thirty per centum of the average wages of the deceased during  widowhood
    30  (or  dependent  widowerhood)  [with  two years' compensation in one sum,
    31  upon remarriage]; and the additional amount of ten per  centum  of  such
    32  wages  for  each  such  child  until  eighteen years of age or until the
    33  removal of the dependency of the blind or physically disabled  child  or
    34  children;  in  case  of  the  subsequent  death  [or remarriage] of such
    35  surviving wife  (or  dependent  husband)  any  surviving  child  of  the
    36  deceased  shall have his compensation increased to fifteen per centum of
    37  such wages until he shall reach the age of eighteen years or until  such
    38  dependent  blind  or  physically  disabled  condition  shall  have  been
    39  removed; provided that the total amount payable shall in no case  exceed
    40  sixty-six and two-thirds per centum of such wages.
    41    The  board may in its discretion require the appointment of a guardian
    42  for the purpose of receiving the compensation of  a  minor  child  or  a
    43  dependent  blind  or physically disabled child. In the absence of such a
    44  requirement by the board the appointment of a guardian for such purposes
    45  shall not be necessary.
    46    2-a. If there be a surviving spouse and a surviving  child  under  the
    47  age of eighteen years or under the age of twenty-three years if enrolled
    48  and attending as a full time student in an accredited educational insti-
    49  tution and such enrollment and full time attendance is certified by such
    50  institution  or  a  surviving  child of any age dependent blind or phys-
    51  ically disabled and the death occurs on or after January first, nineteen
    52  hundred seventy-eight, to such  spouse  thirty-six  and  two-thirds  per
    53  centum of the average wages of the deceased during widowhood or widower-
    54  hood  [with  two  years'  compensation in one sum, upon remarriage]; and
    55  thirty per centum of such wages to such child under the age of  eighteen
    56  years  or  under the age of twenty-three years if enrolled and attending

        A. 7045                            15
 
     1  as a full time student in an accredited educational institution and such
     2  enrollment and full time attendance is certified by such institution  or
     3  a  surviving child of any age dependent blind or physically disabled; in
     4  the  case of the subsequent death of such surviving spouse the surviving
     5  child shall have his compensation increased to sixty-six and  two-thirds
     6  per  centum of such wages and the same shall be payable so long as he is
     7  under the age of eighteen years or under the age of  twenty-three  years
     8  if enrolled and attending as a full time student in an accredited educa-
     9  tional  institution  and  such  enrollment  and  full time attendance is
    10  certified by such institution or a surviving child of any age  dependent
    11  blind or physically disabled; upon statutory termination of compensation
    12  payable to such child, the compensation of the surviving spouse shall be
    13  increased to sixty-six and two-thirds per centum of such wages [with two
    14  years'  compensation,  at  such  rate, in one sum, upon remarriage. Upon
    15  remarriage of such surviving spouse, the surviving child shall  continue
    16  to  receive  thirty per centum of such wages]. Where the death occurs on
    17  or after January first, nineteen hundred seventy-eight and the spouse is
    18  receiving survivors insurance benefits under the  social  security  act,
    19  the  death  benefit  payable under this section shall be reduced by five
    20  per centum of the spouse's share of  the  survivors  insurance  benefits
    21  under the social security act for each ten dollars of deceased's average
    22  weekly  wage  in  excess of one hundred dollars provided that in no case
    23  shall such reduction exceed fifty per centum of said spouse's  share  of
    24  the  survivors  insurance  benefits under the social security act as set
    25  forth in table No. I below.
 
    26                                 TABLE No. I
 
    27               Offset provisions applicable in death benefits
    28               where there is a surviving spouse and one child
 
    29  AVERAGE WEEKLY WAGE                               PERCENTAGE OF SPOUSE'S
    30                                                        SHARE OF SURVIVORS
    31                                                        INSURANCE BENEFITS
    32  over $100 up to and including $110 ................................... 5
    33  over $110 up to and including $120 .................................. 10
    34  over $120 up to and including $130 .................................. 15
    35  over $130 up to and including $140 .................................. 20
    36  over $140 up to and including $150 .................................. 25
    37  over $150 up to and including $160 .................................. 30
    38  over $160 up to and including $170 .................................. 35
    39  over $170 up to and including $180 .................................. 40
    40  over $180 up to and including $190 .................................. 45
    41  over $190 up to and including $200 .................................. 50
    42  over $200 ........................................................... 50
    43    If there be a surviving spouse and  two  or  more  surviving  children
    44  under  the  age of eighteen years or under the age of twenty-three years
    45  if enrolled and attending as a full time student in an accredited educa-
    46  tional institution and such  enrollment  and  full  time  attendance  is
    47  certified  by  such  institution or a surviving child or children of any
    48  age dependent blind or physically disabled and  a  death  occurs  on  or
    49  after  January  first,  nineteen  hundred  seventy-eight, to such spouse
    50  thirty-six and two-thirds per centum of the average wage of the deceased
    51  during widowhood or widowerhood [with two years' compensation in one sum
    52  upon remarriage]; and thirty per centum of such wages to  such  children
    53  under  the  age of eighteen years or under the age of twenty-three years

        A. 7045                            16
 
     1  if enrolled and attending as a full time student in an accredited educa-
     2  tional institution and such  enrollment  and  full  time  attendance  is
     3  certified  by  such  institution or a surviving child or children of any
     4  age  dependent  blind  or physically disabled, share and share alike; in
     5  case of the subsequent death of  such  surviving  spouse  the  surviving
     6  children  shall  have their compensation increased to sixty-six and two-
     7  thirds per centum of such wages and the aggregate sum shall be  payable,
     8  share  and  share  alike,  so long as they are under the age of eighteen
     9  years or under the age of twenty-three years if enrolled  and  attending
    10  as a full time student in an accredited educational institution and such
    11  enrollment  and full time attendance is certified by such institution or
    12  a surviving child or children of any age dependent blind  or  physically
    13  disabled.  [Upon  remarriage  of  such surviving spouse, if there be two
    14  surviving children each shall receive twenty-five  per  centum  of  such
    15  wages,  and  if there are surviving more than two children under the age
    16  of eighteen years or under the  age  of  twenty-three  if  enrolled  and
    17  attending  as  a full time student in an accredited educational institu-
    18  tion and such enrollment and full time attendance is certified  by  such
    19  institution  or a surviving child or children of any age dependent blind
    20  or physically disabled sixty-six and two-thirds per centum of such wages
    21  share and share alike.] Upon statutory termination of compensation paya-
    22  ble to such children, the compensation of the surviving spouse shall  be
    23  increased to sixty-six and two-thirds per centum of such wages [with two
    24  years'  compensation,  at such rate, in one sum, upon remarriage]. Where
    25  the death occurs on or after January first,  nineteen  hundred  seventy-
    26  eight,  and  the  spouse is receiving survivors insurance benefits under
    27  the social security act, the death benefits payable under  this  section
    28  shall  be reduced by five per centum of the spouse's share of the survi-
    29  vors insurance benefits under the  social  security  act  for  each  ten
    30  dollars of deceased's average weekly wage in excess of one hundred fifty
    31  dollars  provided  that in no case shall such reduction exceed fifty per
    32  centum of said spouse's share of the survivors insurance benefits  under
    33  the social security act as set forth in table No. II below.
 
    34                                TABLE No. II
 
    35               Offset provisions applicable in death benefits
    36         where there is a surviving spouse and two or more children
 
    37  AVERAGE WEEKLY WAGE                               PERCENTAGE OF SPOUSE'S
    38                                                        SHARE OF SURVIVORS
    39                                                        INSURANCE BENEFITS
    40  over $150 up to and including $160 ................................... 5
    41  over $160 up to and including $170 .................................. 10
    42  over $170 up to and including $180 .................................. 15
    43  over $180 up to and including $190 .................................. 20
    44  over $190 up to and including $200 .................................. 25
    45  over $200 up to and including $210 .................................. 30
    46  over $210 up to and including $220 .................................. 35
    47  over $220 up to and including $230 .................................. 40
    48  over $230 up to and including $240 .................................. 45
    49  over $240 up to and including $250 .................................. 50
    50  over $250 ........................................................... 50
    51    2-b. If there be a surviving spouse of an employee of a private volun-
    52  tary  hospital killed in a World Trade Center rescue, who passed a phys-
    53  ical examination upon employment as  a  rescue  worker  that  failed  to

        A. 7045                            17
 
     1  reveal  evidence  of  a condition that was the proximate cause of death,
     2  and a surviving child under the age of eighteen years, or under the  age
     3  of  twenty-three  years if enrolled and attending as a full-time student
     4  in  an  accredited educational institution and such enrollment and full-
     5  time attendance is certified by such institution, or a  surviving  child
     6  of  any age dependent blind or physically disabled, to such spouse forty
     7  per centum of the average wages of  the  deceased  during  widowhood  or
     8  widowerhood[, with two years' compensation in one sum, upon remarriage];
     9  and  thirty-five per centum of such wages to such child under the age of
    10  eighteen years, or under the age of twenty-three years if  enrolled  and
    11  attending  as  a full-time student in an accredited educational institu-
    12  tion and such enrollment and full-time attendance is certified  by  such
    13  institution,  or  a  surviving child of any age dependent blind or phys-
    14  ically disabled; in the case of the subsequent death of  such  surviving
    15  spouse  the surviving child shall have his or her compensation increased
    16  to seventy-five per centum of such wages and the same shall  be  payable
    17  so  long  as  he or she is under the age of eighteen years, or under the
    18  age of twenty-three years if  enrolled  and  attending  as  a  full-time
    19  student in an accredited educational institution and such enrollment and
    20  full-time  attendance  is  certified by such institution, or a surviving
    21  child of any age dependent blind or physically disabled; upon  statutory
    22  termination  of  compensation payable to such child, the compensation of
    23  the surviving spouse shall be increased to seventy-five  per  centum  of
    24  such wages [with two years' compensation, at such rate, in one sum, upon
    25  remarriage].  [Upon  remarriage  of such surviving spouse, the surviving
    26  child shall continue to receive thirty-five per centum  of  such  wages.
    27  Where such death occurs, and the spouse is receiving survivors insurance
    28  benefits  under the social security act, the death benefit payable under
    29  this section shall be reduced by five per centum of the  spouse's  share
    30  of  the  survivors  insurance benefits under the social security act for
    31  each ten dollars of deceased's average weekly  wage  in  excess  of  one
    32  hundred  dollars;  provided  that in no case shall such reduction exceed
    33  fifty per centum of such spouse's share of the survivors insurance bene-
    34  fits under the social security act as set forth in table No. I in subdi-
    35  vision one-c of this section.] If there be  a  surviving  spouse  of  an
    36  employee  of a private voluntary hospital killed in a World Trade Center
    37  rescue, who passed a physical examination upon employment  as  a  rescue
    38  worker that failed to reveal evidence of a condition that was the proxi-
    39  mate cause of death, and two or more surviving children under the age of
    40  eighteen  years,  or under the age of twenty-three years if enrolled and
    41  attending as a full-time student in an accredited  educational  institu-
    42  tion  and  such enrollment and full-time attendance is certified by such
    43  institution, or a surviving child or children of any age dependent blind
    44  or physically disabled and a death occurs on or  after  September  elev-
    45  enth,  two  thousand one, to such spouse forty per centum of the average
    46  wage of the deceased during widowhood or widowerhood  [with  two  years'
    47  compensation  in one sum upon remarriage]; and thirty-five per centum of
    48  such wages to such children under the age of eighteen  years,  or  under
    49  the  age  of twenty-three years if enrolled and attending as a full-time
    50  student in an accredited educational institution and such enrollment and
    51  full-time attendance is certified by such institution,  or  a  surviving
    52  child  or  children  of  any age dependent blind or physically disabled,
    53  share and share alike; in case of the subsequent death of such surviving
    54  spouse the surviving children shall have their compensation increased to
    55  seventy-five per centum of such wages and the  aggregate  sum  shall  be
    56  payable,  share  and  share  alike, so long as they are under the age of

        A. 7045                            18
 
     1  eighteen years, or under the age of twenty-three years if  enrolled  and
     2  attending  as  a full-time student in an accredited educational institu-
     3  tion and such enrollment and full-time attendance is certified  by  such
     4  institution, or a surviving child or children of any age dependent blind
     5  or  physically  disabled.  [Upon remarriage of such surviving spouse, if
     6  there be two surviving children  each  shall  receive  thirty-seven  and
     7  one-half  per centum of such wages, and if there are surviving more than
     8  two children under the age of eighteen years, or under the age of  twen-
     9  ty-three  if enrolled and attending as a full-time student in an accred-
    10  ited educational institution and such enrollment and  full-time  attend-
    11  ance  is certified by such institution, or a surviving child or children
    12  of any age dependant blind  or  physically  disabled,  seventy-five  per
    13  centum  of such wages share and share alike.] Upon statutory termination
    14  of compensation payable  to  such  children,  the  compensation  of  the
    15  surviving  spouse  shall be increased to seventy-five per centum of such
    16  wages [with two years' compensation, at such  rate,  in  one  sum,  upon
    17  remarriage].  Where the death occurs on or after September eleventh, two
    18  thousand one, and the spouse is receiving survivors  insurance  benefits
    19  under  the  social  security  act, the death benefits payable under this
    20  section shall be reduced by five per centum of the spouse's share of the
    21  survivors insurance benefits under the social security act for each  ten
    22  dollars of deceased's average weekly wage in excess of one hundred fifty
    23  dollars;  provided that in no case shall such reduction exceed fifty per
    24  centum of said spouse's share of the survivors insurance benefits  under
    25  the  social  security  act  as  set forth in table No. II in subdivision
    26  two-a of this section.
    27    2-c. If there be a surviving spouse and a surviving  child  under  the
    28  age of eighteen years or under the age of twenty-three years if enrolled
    29  and attending as a full-time student in an accredited educational insti-
    30  tution and such enrollment and full-time attendance is certified by such
    31  institution  or  a  surviving  child of any age dependent blind or phys-
    32  ically disabled and the death occurs on  or  after  January  first,  two
    33  thousand sixteen, to such spouse thirty-six and two-thirds per centum of
    34  the  average  wages of the deceased during widowhood or widowerhood; and
    35  thirty per centum of such wages to such child under the age of  eighteen
    36  years  or  under the age of twenty-three years if enrolled and attending
    37  as a full-time student in an accredited educational institution and such
    38  enrollment and full-time attendance is certified by such institution  or
    39  a  surviving child of any age dependent blind or physically disabled; in
    40  the case of the subsequent death of such surviving spouse the  surviving
    41  child  shall  have  their  compensation  increased to sixty-six and two-
    42  thirds per centum of such wages and the same shall be payable so long as
    43  they are under the age of eighteen years or under  the  age  of  twenty-
    44  three  years  if  enrolled  and  attending  as a full-time student in an
    45  accredited educational institution and  such  enrollment  and  full-time
    46  attendance  is certified by such institution or a surviving child of any
    47  age dependent blind or physically disabled; upon  statutory  termination
    48  of compensation payable to such child, the compensation of the surviving
    49  spouse shall be increased to sixty-six and two-thirds per centum of such
    50  wages.
    51    If  there  be  a  surviving  spouse and two or more surviving children
    52  under the age of eighteen years or under the age of  twenty-three  years
    53  if enrolled and attending as a full-time student in an accredited educa-
    54  tional  institution  and  such  enrollment  and  full-time attendance is
    55  certified by such institution or a surviving child or  children  of  any
    56  age  dependent  blind  or  physically  disabled and a death occurs on or

        A. 7045                            19
 
     1  after January first, two thousand sixteen, to such spouse thirty-six and
     2  two-thirds per centum of the average wage of the deceased during  widow-
     3  hood  or  widowerhood; and thirty per centum of such wages to such chil-
     4  dren  under  the  age of eighteen years or under the age of twenty-three
     5  years if enrolled and attending as a full-time student in an  accredited
     6  educational  institution and such enrollment and full-time attendance is
     7  certified by such institution or a surviving child or  children  of  any
     8  age  dependent  blind  or physically disabled, share and share alike; in
     9  case of the subsequent death of  such  surviving  spouse  the  surviving
    10  children  shall  have their compensation increased to sixty-six and two-
    11  thirds per centum of such wages and the aggregate sum shall be  payable,
    12  share  and  share  alike,  so long as they are under the age of eighteen
    13  years or under the age of twenty-three years if enrolled  and  attending
    14  as a full-time student in an accredited educational institution and such
    15  enrollment  and full-time attendance is certified by such institution or
    16  a surviving child or children of any age dependent blind  or  physically
    17  disabled.  Upon  statutory  termination  of compensation payable to such
    18  children, the compensation of the surviving spouse shall be increased to
    19  sixty-six and two-thirds per centum of such wages.
    20    4-d. If there be no surviving spouse  or  child,  or  children  of  an
    21  employee  of a private voluntary hospital killed in a World Trade Center
    22  rescue, who passed a physical examination upon employment  as  a  rescue
    23  worker that failed to reveal evidence of a condition that was the proxi-
    24  mate  cause  of death, under the age of eighteen years, or under the age
    25  of twenty-three years if enrolled and attending as a  full-time  student
    26  in  an  accredited educational institution and such enrollment and full-
    27  time attendance is certified by such institution, or dependent blind  or
    28  physically  disabled  child of any age, or grandchildren or brothers and
    29  sisters if dependent upon the deceased at  the  time  of  the  accident,
    30  under  the age of eighteen years, or under the age of twenty-three years
    31  if enrolled and attending as a full-time student in an accredited educa-
    32  tional institution and  such  enrollment  and  full-time  attendance  is
    33  certified  by such institution, or disabled blind or physically disabled
    34  grandchildren or brothers and sisters of any age, then a sum of  [fifty]
    35  one  hundred  thousand dollars shall be paid to the deceased's surviving
    36  parents or if there be no surviving parents to the deceased's estate.
    37    § 8. The workers' compensation law is amended by adding a new  section
    38  17-a to read as follows:
    39    § 17-a. Limited English proficiency. 1. The board shall provide trans-
    40  lation  of  all documents and forms used by or issued to injured employ-
    41  ees. The translation  shall  be  in  the  six  most  common  non-English
    42  languages  spoken by individuals with limited-English proficiency in the
    43  state of New York.
    44    2. The board shall provide interpretation services to injured  employ-
    45  ees  with respect to its provision of services, information and/or bene-
    46  fits.
    47    3. The board shall publish a language access plan that reflects:
    48    (a) the means by which it provides language assistance services;
    49    (b) the titles of all available translated documents and the languages
    50  into which they have been translated;
    51    (c) the number of public contact positions at the board and the number
    52  of bilingual  employees  in  public  contact  positions,  including  the
    53  languages they speak;
    54    (d)  a  training  plan for board employees which includes, at minimum,
    55  annual training on its language  access  policies  and  how  to  provide
    56  language assistance services;

        A. 7045                            20
 
     1    (e)  a  plan  for  annual  internal monitoring of the board's language
     2  access plan;
     3    (f)  a  plan  of  how the board intends to notify injured employees of
     4  offered language assistant services; and
     5    (g) the appointment of a language access coordinator at the board, who
     6  shall be publicly identified.
     7    4. The language access coordinator for the  board  shall  monitor  the
     8  agency's compliance with this section by annually collecting data on the
     9  provision  of  language  assistance services, the availability of trans-
    10  lated materials, whether signage is properly posted, and any other rele-
    11  vant measures.
    12    § 9. Section 18 of the workers' compensation law, as amended by  chap-
    13  ter 747 of the laws of 1947, is amended to read as follows:
    14    §  18.  Notice  of  injury  or death. Notice of an injury or death for
    15  which compensation is payable under this chapter shall be given  to  the
    16  employer  within thirty days after the accident causing such injury, and
    17  also in case of the death of the employee resulting  from  such  injury,
    18  within  thirty  days  after  such death. Such notice may be given by any
    19  person claiming to be entitled to compensation, or by some  one  in  his
    20  behalf. The notice shall be in writing, and contain the name and address
    21  of  the employee, and state in ordinary language the time, place, nature
    22  and cause of the injury, and be signed by him or  by  a  person  on  his
    23  behalf or, in case of death, by any one or more of his dependents, or by
    24  a person, on their behalf. It shall be given to the employer by deliver-
    25  ing  it to him or sending it by mail, by registered letter, addressed to
    26  the employer at his or its last known place of business; provided  that,
    27  if the employer be a partnership then such notice may be so given to any
    28  one  of  the  partners,  and if the employer be a corporation, then such
    29  notice may be given to any agent or  officer  thereof  upon  whom  legal
    30  process  may  be  served,  or any agent in charge of his business in the
    31  place where the injury occurred. The failure to give notice of injury or
    32  notice of death unless excused by the board either on  the  ground  that
    33  notice  for  some sufficient reason could not have been given, or on the
    34  ground that the employer, or his or its agents in charge of the business
    35  in the place where the accident occurred or having immediate supervision
    36  of the employee to whom the accident  happened,  had  knowledge  of  the
    37  accident or death, or on the ground that the employer has not been prej-
    38  udiced  thereby, shall be a bar to any claim under this chapter, but the
    39  employer and the insurance carrier shall be deemed to have  waived  such
    40  notice  unless  the  objection to the failure to give such notice or the
    41  insufficiency thereof, is raised before the board on the  first  hearing
    42  of the claim field by such injured employee, or his or her dependents at
    43  which  all parties in interest are present, or represented, and at which
    44  the claimant, or principal beneficiary, testifies. The burden  of  proof
    45  on the issue of prejudice shall rest with the employer.
    46    § 10. Subdivision 1 of section 20 of the workers' compensation law, as
    47  amended  by  chapter  635  of  the  laws  of 1996, is amended to read as
    48  follows:
    49    1.  At any time after [the expiration of the first seven days of disa-
    50  bility on the part of] an injury the injured employee, or  at  any  time
    51  after the employee's death, a claim for compensation may be presented to
    52  the  employer  or to the chair.  The board shall hold an initial hearing
    53  in each claim and shall have full power and authority to  determine  all
    54  questions  in  relation  to  the  payment  of claims presented to it for
    55  compensation under the provisions of this chapter.  The chair  or  board
    56  shall make or cause to be made such investigation as it deems necessary,

        A. 7045                            21
 
     1  and  upon application of either party, shall order a hearing, and within
     2  thirty days after a claim  for  compensation  is  submitted  under  this
     3  section,  or such hearing closed, shall make or deny an award, determin-
     4  ing  such claim for compensation, and file the same in the office of the
     5  chair. Immediately after such filing the chair shall send to the parties
     6  a copy of the decision.  Upon a hearing pursuant to this section  either
     7  party  may present evidence and be represented by counsel.  The decision
     8  of the board shall be final as to all questions of fact, and, except  as
     9  provided in section twenty-three of this article, as to all questions of
    10  law.    Except  as provided in section twenty-seven of this article, all
    11  awards of the board shall draw simple interest from  thirty  days  after
    12  the making thereof at the rate provided in section five thousand four of
    13  the  civil practice law and rules.  Whenever a hearing or proceeding for
    14  the determination of a claim for compensation is begun before a referee,
    15  pursuant to the provisions of this chapter, such hearing  or  proceeding
    16  or  any adjourned hearing thereon shall continue before the same referee
    17  until a final determination awarding or denying compensation, except  in
    18  the  absence,  inability  or disqualification to act of such referee, or
    19  for other good cause, in which event such hearing or proceeding  may  be
    20  continued before another referee by order of the chair or board.
    21    § 11. Section 24 of the workers' compensation law, as amended by chap-
    22  ter 494 of the laws of 1950, is amended to read as follows:
    23    §  24.  Costs  and fees. (a) If the court before which any proceedings
    24  for compensation or  concerning  an  award  of  compensation  have  been
    25  brought,  under  this  chapter, determine that such proceedings have not
    26  been so brought upon reasonable ground, it shall assess the cost of  the
    27  proceedings upon the party who has so brought them.
    28    (b)  Claims  of  attorneys and counselors-at-law for legal services in
    29  connection with any claim arising under this  chapter,  and  claims  for
    30  services  or treatment rendered or supplies furnished pursuant to subdi-
    31  vision (b) of section thirteen of this [chapter] article, shall  not  be
    32  enforceable  unless approved by the board.  The board shall approve such
    33  claims of attorneys in accordance with each applicable provision of  the
    34  following schedule:
    35    (i) when an award is made directing the continuation of weekly compen-
    36  sation  benefits  for  temporary total or partial disability, the attor-
    37  ney's fee shall be one-third of one week's compensation.
    38    (ii) when an award is made that increases the amount  of  compensation
    39  awarded  or  paid for a previous period or periods of temporary total or
    40  partial disability, the attorney's fee shall be fifteen percent  of  the
    41  increased compensation.
    42    (iii)  when  an  award  is  made for schedule loss of use or permanent
    43  facial disfigurement pursuant to paragraphs a through t  of  subdivision
    44  three  of  section  fifteen of this article, the attorney's fee shall be
    45  fifteen percent of the compensation due in excess  of  the  employer  or
    46  carrier's previous payments.
    47    (iv)  when an award is made for permanent total disability pursuant to
    48  subdivision one of section fifteen of this article or permanent  partial
    49  disability  pursuant  to  paragraph  w  of  subdivision three of section
    50  fifteen of this article, the attorney's fee shall be equivalent  to  ten
    51  weeks of compensation at the rate fixed by the board.
    52    (v)  when  an  award  is  made  for death benefits pursuant to section
    53  sixteen of this article, the  attorney's  fee  shall  be  equivalent  to
    54  fifteen  percent  of  the  compensation due in excess of the employer or
    55  carrier's previous payments, plus a  sum  equivalent  to  ten  weeks  of
    56  compensation at the rate fixed by the board.

        A. 7045                            22
 
     1    (vi)  when  an  award  is  made pursuant to section thirty-two of this
     2  article, the attorney's fee shall be fifteen percent of any benefits  to
     3  be  paid by the employer or carrier under the agreement. However, if the
     4  attorney is awarded a fee pursuant to this subdivision, payment  of  the
     5  unpaid  and  unaccrued  balance of any attorney fees under the foregoing
     6  subdivisions shall be waived.
     7    [If] (c) When so approved, such claim or claims shall  become  a  lien
     8  upon the compensation awarded, and upon any moneys ordered paid under an
     9  award  by  the  board into the special funds provided for in subdivision
    10  nine of section fifteen[, subdivision nine,] and section  twenty-five-a,
    11  and  any other section of this chapter, but shall be paid therefrom only
    12  in the manner fixed by the board. Any other person, firm or  corporation
    13  who  shall exact or receive fee or gratuity for any services rendered on
    14  behalf of a claimant except in an amount determined by the board,  shall
    15  be  guilty  of  a misdemeanor. Any person, firm or corporation who shall
    16  solicit the business of appearing before the board on behalf of a claim-
    17  ant, or who shall make it a business to solicit employment for a  lawyer
    18  in  connection  with any claim for compensation under this chapter shall
    19  be guilty of a misdemeanor. In case an award is affirmed upon an  appeal
    20  to the appellate division, the same shall be payable with interest ther-
    21  eon  from  the  date  when  said  award  was made by the board except as
    22  provided in section twenty-seven of this [chapter] article.
    23    (d) Where the claim is solely for medical treatment, and no  award  of
    24  compensation is made, attorneys and counselors-at-law may submit a claim
    25  for  legal  services rendered in connection with obtaining authorization
    26  or approval for such  medical  treatment,  including  the  provision  of
    27  advice and representation for the injured worker. The board shall review
    28  and approve such claims, having due regard for the services rendered and
    29  whether  authorization  or approval was obtained. The fees awarded to an
    30  attorney pursuant to this subdivision shall be paid by the  employer  or
    31  carrier.  Any  attorney  fee  awarded pursuant to this subdivision shall
    32  become a credit against a subsequent attorney fee requested pursuant  to
    33  subdivision (b) of this section.
    34    §  12.  Subdivision 2-b of section 25 of the workers' compensation law
    35  is REPEALED and subdivision 2-c is renumbered subdivision 2-b.
    36    § 13. Paragraphs (b) and (c) of subdivision 3 of  section  25  of  the
    37  workers' compensation law, as amended by chapter 61 of the laws of 1986,
    38  are amended to read as follows:
    39    (b)  Nothing herein shall limit the right of the board in a particular
    40  case to hold a hearing and  make  an  award  in  accordance  with  other
    41  provisions  of  this  chapter.  No  case shall be closed and no decision
    42  shall be issued without a hearing upon notice to all parties  interested
    43  and without giving to all such parties an opportunity to be heard.
    44    (c)  The board shall keep an accurate stenographic record of all hear-
    45  ings held.  Whenever a hearing must be continued  or  adjourned  because
    46  the  carrier  or  employer  has engaged in dilatory tactics or exhibited
    47  unjustified lack of preparedness, the board shall impose  a  penalty  of
    48  twenty-five dollars to be paid to the fund created by subdivision two of
    49  section one hundred fifty-one of this chapter and shall in addition make
    50  an award of seventy-five dollars payable to the injured worker or his or
    51  her  dependants.  Dilatory  tactics may include but shall not be limited
    52  to:  failing to subpoena medical witnesses or to secure an order to show
    53  cause as directed by the referee, failing to bring proper files, failing
    54  to appear, failing to produce witnesses or  documents  after  they  have
    55  been  requested by the referee or examiner or as directed by the hearing
    56  notice, unnecessarily protracting the production of evidence, or  engag-

        A. 7045                            23
 
     1  ing in a pattern of delay which unduly delays resolution, except that no
     2  penalty  shall  be  imposed nor award made under this subdivision if the
     3  carrier or employer produces evidence sufficient to excuse  its  conduct
     4  to the satisfaction of the referee.
     5    § 14. Subdivision 1, the fifth undesignated paragraph of subdivision 5
     6  and subdivision 6 of section 29 of the workers' compensation law, subdi-
     7  vision  1  as  amended by section 805 of the laws of 1984 and as further
     8  amended by section 104 of part A of chapter 62 of the laws of 2011,  the
     9  fifth  undesignated paragraph of subdivision 5 as amended by chapter 246
    10  of the laws of 1967, and subdivision 6 as amended by chapter 635 of  the
    11  laws of 1996, are amended to read as follows:
    12    1.  If  an  employee  entitled  to  compensation under this chapter be
    13  injured or killed by the negligence or wrong of another not in the  same
    14  employ, such injured employee, or in case of death, his dependents, need
    15  not  elect  whether to take compensation and medical benefits under this
    16  chapter or to pursue his remedy against such other  but  may  take  such
    17  compensation  and  medical benefits and at any time either prior thereto
    18  or within six months after the awarding of compensation or  within  nine
    19  months  after  the  enactment of a law or laws creating, establishing or
    20  affording a new or additional remedy  or  remedies,  pursue  his  remedy
    21  against  such  other  subject to the provisions of this chapter. If such
    22  injured employee, or in case of death, his dependents, take or intend to
    23  take compensation, and medical benefits in  the  case  of  an  employee,
    24  under  this  chapter and desire to bring action against such other, such
    25  action must be commenced not later than six months after the awarding of
    26  compensation or not later than nine months after the enactment  of  such
    27  law  or  laws  creating,  establishing  or affording a new or additional
    28  remedy or remedies and in any event before the expiration  of  one  year
    29  from  the  date  such  action accrues. In such case, the state insurance
    30  fund, if compensation be payable therefrom, and  otherwise  the  person,
    31  association,  corporation or insurance carrier liable for the payment of
    32  such compensation, as the case may be, shall have a lien on the proceeds
    33  of any recovery from such other to the extent such recovery is for  lost
    34  wages or medical expenses, whether by judgment, settlement or otherwise,
    35  after  the  deduction  of  the  reasonable  and  necessary expenditures,
    36  including attorney's fees, incurred in effecting such recovery,  to  the
    37  extent  of the total amount of compensation awarded under or provided or
    38  estimated by this chapter for such case and  the  expenses  for  medical
    39  treatment  paid  or  to  be  paid by it and to such extent such recovery
    40  shall be deemed for the  benefit  of  such  fund,  person,  association,
    41  corporation  or  carrier. Should the employee or his dependents secure a
    42  recovery from such other, whether by judgment, settlement or  otherwise,
    43  such  employee  or  dependents may apply on notice to such lienor to the
    44  court in which the third party action was instituted, or to a  court  of
    45  competent  jurisdiction if no action was instituted, for an order appor-
    46  tioning the reasonable and necessary expenditures, including  attorneys'
    47  fees,  incurred  in  effecting such recovery. Such expenditures shall be
    48  equitably apportioned by the court between the employee  or  his  depen-
    49  dents and the lienor. Notice of the commencement of such action shall be
    50  given  within  thirty  days thereafter to the chairman, the employer and
    51  the insurance carrier upon a form prescribed by the chairman. Any of the
    52  foregoing providers of compensation and/or medical  benefits  which  has
    53  recovered  a lien pursuant to the provisions hereof against the recovery
    54  of a person injured on or after February first, nineteen hundred  seven-
    55  ty-four  and  before July first, nineteen hundred seventy-eight, through
    56  the use or operation of a motor vehicle in this state, shall notify such

        A. 7045                            24
 
     1  person by certified mail in a manner to be approved by the chairman  and
     2  the  superintendent  of  financial  services of the responsibility of an
     3  "insurer" (as defined in subsection (g) of  section  five  thousand  one
     4  hundred  two  of the insurance law), to reimburse such person under such
     5  circumstances to the extent that  the  recovered  lien  represent  first
     6  party benefits as defined in article fifty-one of the insurance law.
     7    A  copy  of the papers to be used on the application to compromise and
     8  settle the claim must be served as directed by the court or in the  same
     9  manner  as  provided in the civil practice law and rules for a notice of
    10  motion upon the commissioners of the state insurance fund or such  offi-
    11  cer  thereof  designated by them or upon the person, association, corpo-
    12  ration, or insurance carrier, whose written  approval  would  have  been
    13  required  to  compromise  such  cause  of  action by the employee or his
    14  dependents. This notice shall afford  them  the  opportunity  to  submit
    15  affidavits  and  to be heard by the court on the application. A petition
    16  may also be filed pursuant to this subdivision allocating a  portion  of
    17  the third-party recovery to lost wages and/or medical treatment.
    18    6.  [The]  Except  as set forth in section eleven of this article, the
    19  right to compensation or benefits  under  this  chapter,  shall  be  the
    20  exclusive  remedy  to an employee, or in case of death his or her depen-
    21  dents, when such employee is injured or  killed  by  the  negligence  or
    22  wrong  of  another  in  the  same  employ, the employer's insurer or any
    23  collective bargaining agent of the employer's employees or any employee,
    24  of such insurer or such collective bargaining agent (while acting within
    25  the scope of his or her employment). The limitation of liability  of  an
    26  employer  set  forth in section eleven of this article for the injury or
    27  death of an employee shall be applicable to another in the same  employ,
    28  the  employer's  insurer, any collective bargaining agent of the employ-
    29  er's employees or any employee of the employer's insurer or such collec-
    30  tive bargaining agent (while acting within  the  scope  of  his  or  her
    31  employment).  The option to maintain an action in the courts for damages
    32  [based on the employer's failure  to  secure  compensation  for  injured
    33  employees  and  their  dependents as set forth in section eleven of this
    34  article] shall not be construed to include  the  right  to  maintain  an
    35  action against another in the same employ, [the employer's insurer,] any
    36  collective  bargaining agent of the employer's employees or any employee
    37  [of the employer's insurer] or such collective bargaining  agent  (while
    38  acting within the scope of his or her employment).
    39    § 15. Subdivision 3 of section 35 of the workers' compensation law, as
    40  amended  by section 2 of subpart A of part NNN of chapter 59 of the laws
    41  of 2017, is amended and a new subdivision 5 is added to read as follows:
    42    3. Extreme hardship redetermination. In cases where the loss of  wage-
    43  earning  capacity is greater than [seventy-five] fifty percent, a claim-
    44  ant may request[, within the year prior to the scheduled  exhaustion  of
    45  indemnity  benefits  under  paragraph  w of subdivision three of section
    46  fifteen of this article], that the  board  reclassify  the  claimant  to
    47  permanent total disability or total industrial disability due to factors
    48  reflecting  extreme  hardship.  Extreme hardship is defined as:  (a) the
    49  injured worker's income from Social  Security  disability  benefits  and
    50  disability  pension  (if applicable) would be less than fifty percent of
    51  his or her average weekly wage upon termination of PPD benefits; or  (b)
    52  the  injured  worker  will  be  unable  to  meet expenses for himself or
    53  herself and any dependents upon termination  of  PPD  benefits;  or  (c)
    54  additional  medical, functional or vocational factors arising subsequent
    55  to the classification  of  permanent  partial  disability  have  further
    56  eroded  the  injured  worker's wage earning capacity; or (d) the injured

        A. 7045                            25
 
     1  worker's income would be  below  the  federal  poverty  guidelines  upon
     2  termination of PPD benefits.
     3    5.  Return to work programs. The following programs shall be developed
     4  and implemented by January first, two thousand twenty:
     5    (a) Return to work education. The board and the  department  of  labor
     6  shall  develop  and  provide education tools and technical assistance on
     7  how to build a return to work culture within  an  organization,  partic-
     8  ularly  to  small- and medium-sized employers. These tools shall include
     9  templates of sample policies and procedural  frameworks  for  return  to
    10  work  programs, and illustrations of the financial benefits of effective
    11  return to work protocols. In addition, the board and the  department  of
    12  labor  shall  develop  and  implement,  with input from stakeholders, an
    13  education program for all  participants  in  the  workers'  compensation
    14  system,  including  employers and employees, carriers, claimants' attor-
    15  neys and claims examiners, on the value and components of  an  effective
    16  return  to  work program and their respective roles in assuring positive
    17  return to work outcomes.
    18    (b) Employer return to  work  policies.  The  board  shall  require  a
    19  formal,  consistent  return to work policy of all New York employers who
    20  employ more than twenty-five individuals,  and  carriers  shall  provide
    21  model policies for employers of fewer than twenty-five. The policy shall
    22  be written and tailored to the specific needs of the employer.
    23    (c)  Return  to work communication. The board shall redesign the forms
    24  it uses to encourage and improve early and frequent  outreach  from  the
    25  employer  to  the injured worker, from the physician to the employer and
    26  from the physician to the injured worker. These forms shall seek clearer
    27  information on job duties and physical demands of a given job; ascertain
    28  the extent to which physicians are communicating with the injured worker
    29  about return to work; and contain information that will allow review  by
    30  board  staff  to  ensure that injured workers are not needlessly delayed
    31  treatment or services that could facilitate return to work.
    32    (d) Improvements in the  physician's  role.  The  occupational  health
    33  clinics, administered by the department of health, shall develop content
    34  and  curriculum  for  a continuing medical education course on return to
    35  work. The board shall improve training of physicians  around  return  to
    36  work  principles. The board shall assure that physicians are compensated
    37  for the time it takes to evaluate  true  return  to  work  opportunities
    38  within the injured worker's functional capabilities.
    39    (e) Vocational rehabilitation evaluations. The board shall assure that
    40  a  neutral, non-medical vocational rehabilitation evaluation is provided
    41  to all claimants who have not returned to work at  the  time  they  have
    42  reached maximum medical improvement to determine whether their return to
    43  work would be facilitated by vocational education or training. The eval-
    44  uation  shall  be  done under a standardized protocol established by the
    45  board and shall be binding on all parties.   The  vocational  assessment
    46  shall  be  paid  for  by the carrier, self-insured employer or the state
    47  insurance fund. Submission of the current rehabilitation form  shall  be
    48  required,  and  penalties shall be imposed for the late or non-filing of
    49  forms related to return to work and rehabilitation programs.
    50    (f) Vocational rehabilitation services. The board  shall  assure  that
    51  vocational  rehabilitation  services  are provided more expeditiously to
    52  injured workers and are appropriately funded. The options available  and
    53  the costs shall be subject to regulation by the board. If the evaluation
    54  recommends  vocational  education  or  retraining,  the  costs  shall be
    55  covered first by appropriate sources of state or federal funding. Carri-
    56  ers shall not be permitted to seek a change in an injured worker's clas-

        A. 7045                            26
 
     1  sification status while that individual  is  actively  participating  in
     2  retraining  or vocational rehabilitation in accordance with the individ-
     3  ualized reemployment plan developed as a result of the vocational  reha-
     4  bilitation evaluation.
     5    (g)  Incentive programs. The board, the department, and the department
     6  of financial services  shall  develop  incentive  programs  targeted  to
     7  hiring  workers  who  have  permanent  work restrictions. These programs
     8  shall be established and analyzed for their impact  on  return  to  work
     9  rates and cost effectiveness. Parameters for such program, at a minimum,
    10  shall  include  those which offer employers wage subsidies for employing
    11  and retraining injured workers,  reimbursement  for  workplace  accommo-
    12  dations to enable injured workers to adjust the job to their capacities,
    13  vocational  assessments, retraining for those injured workers who cannot
    14  return to their at-injury employer and funds for purchase of items  that
    15  are  required  of  any  new  hire. Return to work programs subsidized by
    16  these programs shall, at a minimum, be at eighty percent of the pre-hire
    17  wage. Incentive programs shall require an employer match.
    18    (h) Medical only cases.  The  board  shall  compensate  attorneys  for
    19  representation  provided in certain medical-only cases, so as to facili-
    20  tate the medical care necessary for an injured worker's  return  to  the
    21  labor force.
    22    (i) Workers' compensation board process issues. The board shall put in
    23  place  improvements and proactive approaches to return to work. It shall
    24  develop procedures for promptly contacting claimants no later  than  one
    25  hundred  twenty days after injury or within two weeks of maximum medical
    26  improvement to determine the feasibility of return  to  work.    Partic-
    27  ipants in the workers' compensation system, including the administrative
    28  law  judges,  shall be educated on the importance of return to work. The
    29  board shall establish a procedure to ensure that all claimants  who  are
    30  eligible for a reduced earning award receive such award.
    31    (j)  Return  to  work  for public employees. A "pay without prejudice"
    32  pilot program shall be  undertaken  with  state  agencies  and  selected
    33  public authorities and local governments to speed up appropriate medical
    34  treatment  to workers that sustain workplace injuries. The program shall
    35  be analyzed to determine whether improvements in timeliness  of  medical
    36  authorization  results improve return to work outcomes of public employ-
    37  ees.
    38    § 16. The workers' compensation law is amended by adding a new section
    39  59 to read as follows:
    40    § 59. Financial statement and detailed claim data to be filed with the
    41  board.  (a) For purposes of this section, the term "insurer"  means  any
    42  person, corporation, association or other business entity which issues a
    43  policy of workers' compensation insurance.
    44    (b) On or before April first of each year, every insurer shall for the
    45  calendar year provide the board and the public with a detailed financial
    46  statement  to supplement and expand upon any other information otherwise
    47  provided to the board, the department of financial services, or the  New
    48  York  compensation  insurance rating board as it relates to an insurer's
    49  provision of workers'  compensation  insurance  coverage  to  employers;
    50  provided,  however,  that the initial financial statement so filed by an
    51  insurer after the effective date  of  this  section  shall  include  the
    52  information  required in this subdivision not only for such prior calen-
    53  dar year but also for the previous nine calendar  years  prior  to  such
    54  report. The financial statement shall, in depth, detail:
    55    (1) total premium collected;
    56    (2) assessments collected;

        A. 7045                            27
 
     1    (3) dividend income;
     2    (4)  payment of workers' compensation benefits for temporary disabili-
     3  ty;
     4    (5) non-scheduled permanent partial disability;
     5    (6) scheduled permanent partial disability;
     6    (7) permanent total disability;
     7    (8) death benefits;
     8    (9) medical treatment;
     9    (10) payments to vendors including but not limited to: (i) independent
    10  medical examination providers;  (ii)  investigators;  (iii)  nurse  case
    11  managers;  (iv)  peer reviews; (v) utilization reviews; and (vi) defense
    12  litigation costs;
    13    (11) number of open claims at the time such statement is prepared;
    14    (12) other expenses by category as determined by the board to  reflect
    15  the cost to the insurer to provide such coverage;
    16    (13)  investment income realized from that portion of the premium paid
    17  for a policy providing such coverage;
    18    (14) lien recoveries pursuant to section twenty-nine of this chapter;
    19    (15) credits or offsets obtained pursuant to  section  twenty-nine  of
    20  this chapter; and
    21    (16)  credits,  premium  reductions, experience modifications or other
    22  benefits provided to insured employers as a result  of  lien  recoveries
    23  and credits obtained pursuant to section twenty-nine of this chapter.
    24    (c)  The  board  shall, in both written form and as part of the agency
    25  website, make such financial statements and detailed  claim  information
    26  available  to  the  public.    The  detailed  claim information shall be
    27  provided in aggregate form for all insurers and  separated  by  specific
    28  insurer,  combined  without  any identification of a specific claim to a
    29  specific insurer. None of the publicly available detailed claim informa-
    30  tion shall identify the individual insurer,  employer  or  employee,  or
    31  representative  of  the  same, associated with the claim. Such financial
    32  statements and detailed claim information shall be deemed a public docu-
    33  ment and no person shall be required to file a request for  such  finan-
    34  cial  statements  pursuant  to article six of the public officers law in
    35  order to receive a copy thereof, but upon request and payment of the fee
    36  for copying such document, it shall be provided forthwith. With  respect
    37  to  the  electronic copy of such financial statements and detailed claim
    38  information, which shall be accessible on the board's website, the board
    39  shall highlight the availability of such information to  the  public  on
    40  such website, and the link to each insurer's financial statement and the
    41  aggregated  detailed  claim  information shall be accessible in a simple
    42  and easy manner.  Both the financial statement and  aggregated  detailed
    43  claim  information  on the board's website shall be available in spread-
    44  sheet format, in addition to any other format the  chair  determines  is
    45  appropriate.  Where  summaries  are  included,  they shall be written in
    46  plain and simple English so that the public at large can easily  compre-
    47  hend the data provided.
    48    (d)  On  or  before  July  first  of  each year, the chair shall issue
    49  reports summarizing and explaining the information  collected  from  the
    50  financial  statements and the detailed claim information and summarizing
    51  the cost and other essential elements  relevant  to  providing  workers'
    52  compensation  insurance  coverage.  Copies  of  such  reports  shall  be
    53  forwarded to the temporary president of the senate, the speaker  of  the
    54  assembly and the chairs of the senate and assembly insurance committees.
    55  Such  reports  shall be public documents and shall be accessible both in

        A. 7045                            28
 
     1  paper copy and on the board's website in a similar fashion  as  provided
     2  for in subsection (c) of this subdivision.
     3    (e) Where an insurer fails or refuses to provide the board with a full
     4  and  complete  disclosure  as  required by this section, the chair shall
     5  take such action he or she deems necessary to  bring  the  insurer  into
     6  full  compliance.  Such action may include imposition of a civil penalty
     7  of up to fifty thousand dollars assessed against the  insurer  for  each
     8  violation,  temporary  suspension of any right to issue additional poli-
     9  cies or contracts until the insurer brings itself into full  compliance,
    10  an  audit  of  the  insurer's  records  by  the  department of financial
    11  services or its designated representative to obtain the information  and
    12  which  audit shall be paid for by the insurer, or any other civil remedy
    13  the  chair  deems  warranted  or  necessary  until  such  insurer  fully
    14  complies.  In  addition  the  officer whose signature is affixed to such
    15  statement may be personally penalized to the same extent.
    16    (f) The board may promulgate  such  rules  and  regulations  it  deems
    17  necessary  for  the  proper  administration  of  the  provisions of this
    18  section, and such rules and regulations may be promulgated on  an  emer-
    19  gency basis if the chair warrants such action to be necessary.
    20    (g)  If  any  part  of this section, or the application thereof to any
    21  person or circumstances shall be held to be invalid, such holding  shall
    22  not  affect, impair or invalidate the remainder of this act but it shall
    23  be confined in its operation to the  item,  clause,  sentence,  subpara-
    24  graph,  subdivision  or other part of this act directly involved in such
    25  holding, or to the person and circumstances therein involved.
    26    § 17. The workers' compensation law is amended by adding a new section
    27  112-a to read as follows:
    28    § 112-a. Audits of employers.  1. (a) Employers in all  classes  other
    29  than  the  construction  class shall be audited not less frequently than
    30  biennially and the chair or board may provide for more  frequent  audits
    31  of  employers  in  specified  classifications  based  on factors such as
    32  amount of premium, type of business,  loss  ratios,  or  other  relevant
    33  factors. In no event shall employers in the construction class, generat-
    34  ing  more than the amount of premium required to be experience rated, be
    35  audited less frequently than annually. The annual  audits  required  for
    36  construction  classes  may  be  a  physical,  onsite  review of original
    37  payroll records, employee records, checkbooks, cash book  (disbursements
    38  and receipts), general ledger, contracts, tax returns including quarter-
    39  ly payroll filings, and original certificates of insurance. The audit of
    40  all  employers  shall  be conducted no more than one hundred twenty days
    41  after the expiration of a policy period. At the completion of an  audit,
    42  if  requested by the auditor, the employer or officer of the corporation
    43  must print and sign their names on  the  audit  document  affirming  the
    44  accuracy of the information provided therein. As required by section one
    45  hundred twelve of this article, employers shall make available all books
    46  and  records necessary for the payroll verification audit and permit the
    47  auditor to make a physical inspection of the employer's operation.    If
    48  an  employer  fails  to  provide reasonable access to all such books and
    49  records necessary for a payroll verification audit, including a physical
    50  inspection of  the  employer's  operation,  the  employer  shall  pay  a
    51  surcharge  to  the carrier of two times the most recent estimated annual
    52  premium.
    53    (b) Employers that fail to provide reasonable access  to  the  carrier
    54  for the purpose of conducting an audit shall be reported to the New York
    55  compensation insurance rating board.

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     1    (c)  If  an  employer  knowingly  understates  or  knowingly  conceals
     2  payroll, knowingly misrepresents or knowingly conceals  employee  duties
     3  so  as to avoid proper classification for premium calculations, or know-
     4  ingly misrepresents or knowingly conceals information pertinent  to  the
     5  computation and application of an experience rating modification factor,
     6  said knowing misrepresentations or knowing concealments shall be consid-
     7  ered  fraudulent  practices  in  violation  of  applicable provisions of
     8  section one hundred fourteen of this  article  and  insurance  fraud  in
     9  violation of applicable provisions of section 176.05 of the penal law.
    10    (d)  If during the course of an audit conducted under this section, an
    11  insurance carrier obtains information  indicating  a  violation  of  the
    12  provisions  of paragraph (c) of this subdivision, then the carrier shall
    13  report such information to the board.
    14    2. This section shall not  apply  to  employers  that  self-insure  or
    15  employers that are members of a workers' compensation group self-insured
    16  trust.
    17    3.  For  the  purposes of this section, "construction class" means the
    18  work or occupation described in "Group 3" of subdivision one of  section
    19  three of this chapter.
    20    §  18.  Subdivision 1 of section 117 of the workers' compensation law,
    21  as amended by chapter 17 of the laws of 1984,  is  amended  to  read  as
    22  follows:
    23    1.  The  board  may adopt reasonable rules consistent with and supple-
    24  mental to the provisions of this chapter and the labor law. The chairman
    25  may make reasonable regulations consistent with the provisions  of  this
    26  chapter  and the labor law. The board may not utilize "subject numbers",
    27  forms or other informal communications outside of its rules, regulations
    28  or decisions to interpret or apply the law.
    29    § 19. The opening  paragraph  and  second  undesignated  paragraph  of
    30  section  120  of the workers' compensation law, the opening paragraph as
    31  amended by section 31 of part SS of chapter 54 of the laws of 2016,  and
    32  the  second  undesignated paragraph as amended by chapter 61 of the laws
    33  of 1989, are amended to read as follows:
    34    It shall be unlawful for any employer or his or  her  duly  authorized
    35  agent to discharge, threaten, penalize, or fail to reinstate pursuant to
    36  section  two  hundred  three-b  of  this chapter, or in any other manner
    37  discriminate or retaliate against an employee as to his or  her  employ-
    38  ment (i) because such employee has claimed or attempted to claim compen-
    39  sation from such employer, or claimed or attempted to claim any benefits
    40  provided  under  this  chapter [or], (ii) because such employer believes
    41  that such employee has claimed or will claim compensation; (iii) because
    42  such employee has caused to be instituted or is  about  to  institute  a
    43  claim for compensation or other benefit under this chapter; (iv) because
    44  he  or  she  has  testified or is about to testify in a proceeding under
    45  this chapter [and no other valid reason  is  shown  to  exist  for  such
    46  action  by  the  employer];  or  (v) because such employee has otherwise
    47  exercised rights protected under this  chapter.  For  purposes  of  this
    48  provision,  "because"  shall  be  interpreted to require that the listed
    49  activity was at least a contributing factor to the employer's action.
    50    Any complaint alleging such an unlawful discriminatory  practice  must
    51  be filed within two years of the commission of such practice. Upon find-
    52  ing  that an employer has violated this section, the board shall make an
    53  order that any employee so discriminated against shall  be  restored  to
    54  employment or otherwise restored to the position or privileges he or she
    55  would  have  had  but for the discrimination and shall be compensated by
    56  his or her employer for any loss of compensation  arising  out  of  such

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     1  discrimination  together  with  such  fees  or  allowances  for services
     2  rendered by an attorney or  licensed  representative  as  fixed  by  the
     3  board.  Any  employer  who  violates  this  section shall be liable to a
     4  penalty  of  not  less  than one [hundred] thousand dollars or more than
     5  [five hundred] ten thousand dollars, as may be determined by the  board.
     6  All  such  penalties  shall  be  paid  [into  the state treasury] to the
     7  employee so discriminated against.  All penalties, compensation and fees
     8  or allowances shall be paid solely by the employer. The  employer  alone
     9  and  not  his  or  her  carrier  shall  be liable for such penalties and
    10  payments.  Any provision in an insurance policy undertaking  to  relieve
    11  the  employer  from  liability  for such penalties and payments shall be
    12  void.
    13    § 20. Paragraphs (a) and (b)  of  subdivision  1,  subdivision  7  and
    14  subdivision 11 of section 137 of the workers' compensation law, as added
    15  by chapter 473 of the laws of 2000, are amended to read as follows:
    16    (a) A copy of each report of independent medical examination on behalf
    17  of  an employer or carrier shall be submitted by the practitioner on the
    18  same day and in the same manner to the board, the insurance carrier, the
    19  claimant's attending physician  or  other  attending  practitioner,  the
    20  claimant's representative and the claimant.
    21    (b) If a practitioner who has performed or will be performing an inde-
    22  pendent  medical  examination  of a claimant on behalf of an employer or
    23  carrier receives a  request  for  information  regarding  the  claimant,
    24  including faxed or electronically transmitted requests, the practitioner
    25  shall  submit  a copy of the request for information to the board within
    26  ten days of receipt of the request. Nothing in this subdivision shall be
    27  construed to abrogate the attorney-client privilege.
    28    7. The claimant shall receive notice by mail of  the  scheduled  inde-
    29  pendent medical examination on behalf of an employer or carrier at least
    30  seven  business days prior to such examination. Such notice shall advise
    31  the claimant if the practitioner intends to record  or  video  tape  the
    32  examination,  and shall advise the claimant of their right to video tape
    33  or otherwise record the examination. Claimants shall be advised of their
    34  right to be accompanied during the exam by an individual or  individuals
    35  of their choosing.
    36    11. At the time of the independent medical examination on behalf of an
    37  employer  or carrier the claimant shall receive a notice from the entity
    38  performing the independent medical examination, on a form which shall be
    39  approved and promulgated by the chair,  stating  the  rights  and  obli-
    40  gations  of the claimant and the practitioner with respect to such exam,
    41  and such notice shall include but not be limited to a statement that the
    42  claimant's receipt of benefits could be denied, terminated,  or  reduced
    43  as a result of a determination which may be based upon the medical eval-
    44  uation  made  after such independent medical examination, and the claim-
    45  ant's rights to challenge or appeal such a determination.
    46    § 21. The workers' compensation law is amended by adding a new section
    47  208-a to read as follows:
    48    § 208-a. Cost-of-living adjustments of disability benefits in  certain
    49  cases.  1.  Notwithstanding  any  other provision of law, effective July
    50  first, two thousand nineteen, in addition to any other  amount  received
    51  pursuant  to  this  article  as  disability benefits, an employee with a
    52  permanent total disability or the beneficiary-dependent of such employee
    53  shall be entitled to an additional allowance, to be known as a  cost-of-
    54  living adjustment allowance, payable annually.
    55    2. The cost-of-living adjustment allowance shall be computed by apply-
    56  ing  an  adjustment  for  regional costs of living and shall be based on

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     1  fifty percent of the annual increase in  the  consumer  price  index  as
     2  promulgated by the United States department of labor.
     3    § 22. This act shall take effect immediately.
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