A10349 Summary:

BILL NOA10349
 
SAME ASSAME AS S09149
 
SPONSORRules (Joyner)
 
COSPNSRJacobson
 
MLTSPNSR
 
Add §118-a, amd §11, Work Comp L
 
Provides that determinations by the workers' compensation board shall not be given collateral estoppel effect in any other action or proceeding arising out of the same occurrence, other than the determination of the existence of an employer employee relationship.
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A10349 Actions:

BILL NOA10349
 
05/13/2022referred to labor
06/02/2022reference changed to ways and means
06/02/2022reported referred to rules
06/03/2022reported
06/03/2022rules report cal.747
06/03/2022substituted by s9149
 S09149 AMEND= GOUNARDES
 05/11/2022REFERRED TO LABOR
 06/02/2022COMMITTEE DISCHARGED AND COMMITTED TO RULES
 06/02/2022ORDERED TO THIRD READING CAL.1914
 06/02/2022PASSED SENATE
 06/02/2022DELIVERED TO ASSEMBLY
 06/02/2022referred to labor
 06/03/2022substituted for a10349
 06/03/2022ordered to third reading rules cal.747
 06/03/2022passed assembly
 06/03/2022returned to senate
 12/19/2022DELIVERED TO GOVERNOR
 12/30/2022SIGNED CHAP.835
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A10349 Committee Votes:

WAYS AND MEANS Chair:Weinstein DATE:06/02/2022AYE/NAY:29/4 Action: Favorable refer to committee Rules
WeinsteinAyeRaAye
GlickAyeFitzpatrickNay
NolanAyeHawleyAye
PretlowAyeMontesanoNay
ColtonAyeBlankenbushAye
CookAyeNorrisNay
CahillAyeBrabenecAye
AubryAyePalmesanoAye
CusickAyeByrneNay
BenedettoAyeAshbyAye
WeprinAye
RamosExcused
BraunsteinAye
McDonaldAye
RozicAye
DinowitzAye
JoynerExcused
MagnarelliAye
ZebrowskiAye
BronsonAye
DilanAye
SeawrightAye
HyndmanAye
WalkerAye
Bichotte HermelAye

RULES Chair:Gottfried DATE:06/03/2022AYE/NAY:28/0 Action: Favorable
HeastieExcusedBarclayAye
GottfriedAyeHawleyAye
NolanExcusedGiglioAye
WeinsteinAyeBlankenbushAye
PretlowAyeNorrisAye
CookAyeMontesanoAye
GlickAyeRaAye
AubryAyeBrabenecAye
EnglebrightAye
DinowitzAye
ColtonExcused
MagnarelliAye
PaulinAye
Peoples-StokesAye
BenedettoAye
LavineAye
LupardoAye
ZebrowskiAye
ThieleAye
BraunsteinAye
DickensAye
DavilaAye
HyndmanAye

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A10349 Floor Votes:

There are no votes for this bill in this legislative session.
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A10349 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A10349
 
SPONSOR: Rules (Joyner)
  TITLE OF BILL: An act to amend the workers' compensation law, in relation to enacting the justice for injured workers act   PURPOSE OR GENERAL IDEA OF BILL: To correct recent court decisions that granted preclusive effect to decisions of the Workers' Compensation Board (WCB), barring injured workers from seeking justice through the courts because of an adminis- trative decision of the WCB.   SUMMARY OF PROVISIONS: Section one of the bill provides the title of the Justice for Injured Workers Act. Section two of the bill adds a new section 118-a to the Workers' Compen- sation Law that would bar a court or other forum from granting preclu- sive or collateral estoppel effect to decisions by the Workers' Compen- sation Board in any other action or proceeding. Section three of the bill adds a new paragraph (b) to section 11 of the Workers' Compensation Law that would bar a court or other forum from granting preclusive or collateral estoppel effect to decisions by the Workers' Compensation Board in any other action or proceeding. Section four of the bill sets the effective date.   JUSTIFICATION: The Justice for Injured Workers Act ("JIWA") will bar determinations made in Worker Compensation proceedings from having preclusive effect in trials by a worker whose injuries are caused by negligence or wrongful conduct of third parties (i.e. parties other than the worker's employ- er.) Over 100 years ago, New York enacted a Worker's Compensation hearing System with a "grand bargain" to address the plague of on-the-job inju- ries suffered by workers. The bargain: workers surrendered their consti- tutional rights to sue their employer for causing workplace injuries and, in exchange, employers provided insurance that guaranteed medical care and cash benefits for such injuries, regardless of fault. To ensure that this "no fault" system provided quick and consistent benefits, disputes between an employer and an employee to the existence or extent of an alleged workplace injury are resolved in lightning-fast administrative hearings before a Worker's Compensation Law Judge ("WCLJ"). These hearings sacrifice basic procedures and evidentiary rules of trials to swiftly decide the claims. The hearings do not address fault; do not allow the parties to take depositions; do not provide a way to compel witnesses to testify; do not allow for exchanges of documents before a hearing; do not afford workers the right to order medical tests or elicit testimony from physicians; and do not give credence to injured workers' descriptions of their alleged injuries. Hearsay is allowed as evidence, and witnesses have strict time limits in which to provide testimony. Worker's Compensation hearings often consist of a cursory examination of medical records, and they do not consist of a searching review for truth, which occurs in a jury trial. This is why, for almost 80 years, when an injured worker filed a "third- party action" against someone other than the employer for wrongfully causing a workplace injury, courts rejected attempts by defendants to apply collateral estoppel. Courts refused to use, as purportedly conclu- sive "facts" for purposes of the third-party litigation, the "findings" from Worker's Compensation hearings. But in 1989, this all changed. The New York Appellate Division for the Second Department held that a Work- er's Compensation hearing determination collaterally estopped the worker from pursuing a subsequent action against a non-employer third-party and dismissed the action. In the wake of this decision, other New York courts began to apply the collateral estoppel doctrine to findings by WCLJs to dismiss third-party actions. Workers suffered. In 2013, the New York Court of Appeals held that the collateral estoppel doctrine was being used to deny an injured worker his right to a fair trial. This ruling, in Auqui v Seven Thirty One Ltd. Partnership, 22 NY3d 246, 25557   2013, reinforced the concept that the party responsi- ble for causing an injured worker's injuries remains obligated to pay for lost wages and medical expenses. Unfortunately, Auqui left open the possibility that courts could apply the collateral estoppel doctrine to a prior Worker's Compensation deci- sion and deny injured workers the right to have a jury rule on their claims. This legislation is needed to ensure that findings from cursory Worker's Compensation Board hearings do not prevent workers from exercising their constitutional right to a jury trial.   PRIOR LEGISLATIVE HISTORY: None   FISCAL IMPLICATIONS: None   EFFECTIVE DATE: Immediate
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A10349 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          10349
 
                   IN ASSEMBLY
 
                                      May 13, 2022
                                       ___________
 
        Introduced  by  COMMITTEE ON RULES -- (at request of M. of A. Joyner) --
          read once and referred to the Committee on Labor
 
        AN ACT to amend the workers' compensation law, in relation  to  enacting
          the justice for injured workers act
 
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:

     1    Section 1. This act shall be known as the "justice for injured workers
     2  act".
     3    § 2. The workers' compensation law is amended by adding a new  section
     4  118-a to read as follows:
     5    §   118-a.   Effect  of  findings  and  determinations  in  subsequent
     6  proceedings. With respect to an action for a workers' compensation claim
     7  permissible under this chapter, no finding or decision by  the  workers'
     8  compensation  board,  judge  or  other arbiter shall be given collateral
     9  estoppel effect in any other action or proceeding  arising  out  of  the
    10  same  occurrence,  other  than  the determination of the existence of an
    11  employer employee relationship.
    12    § 3. Section 11 of the workers' compensation law, as amended by  chap-
    13  ter 635 of the laws of 1996, the opening paragraph as amended by section
    14  8  of  part SS of chapter 59 of the laws of 2017, the fifth undesignated
    15  paragraph as added by chapter 49 of the laws of  1999  and  the  closing
    16  paragraph  as  added  by  chapter 392 of the laws of 2008, is amended to
    17  read as follows:
    18    § 11. Alternative remedy. 1. The liability of an  employer  prescribed
    19  by  the  last  preceding  section shall be exclusive and in place of any
    20  other liability whatsoever, to such employee, his or her personal repre-
    21  sentatives, spouse, parents, dependents,  distributees,  or  any  person
    22  otherwise  entitled  to  recover  damages, contribution or indemnity, at
    23  common law or otherwise, on account of such injury or death or liability
    24  arising therefrom, except that  if  an  employer  fails  to  secure  the
    25  payment  of  compensation  for  his  or  her injured employees and their
    26  dependents as provided in section fifty  of  this  chapter,  an  injured
    27  employee,  or  his  or her legal representative in case of death results
    28  from the injury, may, at his or her option, elect to claim  compensation
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD15789-01-2

        A. 10349                            2
 
     1  under  this  chapter, or to maintain an action in the courts for damages
     2  on account of such injury; and in such an action it shall not be  neces-
     3  sary  to plead or prove freedom from contributory negligence nor may the
     4  defendant  plead  as  a defense that the injury was caused by the negli-
     5  gence of a fellow servant nor that the employee assumed the risk of  his
     6  or  her  employment,  nor  that  the  injury was due to the contributory
     7  negligence of the employee. The liability under this chapter of The  New
     8  York  Jockey  Injury  Compensation  Fund, Inc. created under section two
     9  hundred twenty-one of the racing, pari-mutuel wagering and breeding  law
    10  shall  be  limited to the provision of workers' compensation coverage to
    11  jockeys, apprentice jockeys, exercise persons, and at  the  election  of
    12  the New York Jockey Injury Compensation Fund, Inc., with the approval of
    13  the  New York state gaming commission, employees of licensed trainers or
    14  owners licensed under article two or four  of  the  racing,  pari-mutuel
    15  wagering and breeding law and any statutory penalties resulting from the
    16  failure to provide such coverage.
    17    For  purposes of this section the terms "indemnity" and "contribution"
    18  shall not include a claim or cause of action for contribution or  indem-
    19  nification  based  upon  a  provision in a written contract entered into
    20  prior to the accident or occurrence by which the employer had  expressly
    21  agreed  to  contribution to or indemnification of the claimant or person
    22  asserting the cause of action for the type of loss suffered.
    23    An employer shall not be liable for contribution or indemnity  to  any
    24  third  person based upon liability for injuries sustained by an employee
    25  acting within the scope of his  or  her  employment  for  such  employer
    26  unless  such third person proves through competent medical evidence that
    27  such employee has sustained a "grave injury" which shall mean  only  one
    28  or  more  of  the  following:  death, permanent and total loss of use or
    29  amputation of an arm, leg, hand or foot, loss of multiple fingers,  loss
    30  of multiple toes, paraplegia or quadriplegia, total and permanent blind-
    31  ness, total and permanent deafness, loss of nose, loss of ear, permanent
    32  and  severe facial disfigurement, loss of an index finger or an acquired
    33  injury to the brain caused by an external physical  force  resulting  in
    34  permanent total disability.
    35    For  purposes  of  this  section  "person" means any individual, firm,
    36  company, partnership, corporation, joint  venture,  joint-stock  associ-
    37  ation, association, trust or legal entity.
    38    The  liability under this chapter of the New York black car operators'
    39  injury compensation fund, inc. shall be limited  to:  (i)  securing  the
    40  payment of workers' compensation in accordance with article six-F of the
    41  executive  law to black car operators, as defined in such article, whose
    42  injury arose out of and in  the  course  of  providing  services  for  a
    43  central  dispatch facility, as defined in such article, that is a regis-
    44  tered member of such fund, and (ii) any statutory penalty resulting from
    45  the failure to secure such payment. The liability under this chapter  of
    46  a  central  dispatch facility, as defined in article six-F of the execu-
    47  tive law, that is a registered member of the New York black  car  opera-
    48  tors'  injury compensation fund, inc. that shall be limited to remaining
    49  a registered member in good standing of  such  fund  and  any  statutory
    50  penalty,  including loss of immunity provided by this section, resulting
    51  from the failure to become or remain a registered member in good  stand-
    52  ing  of  such fund, except, however, that such central dispatch facility
    53  shall be subject to the provisions of section one hundred thirty-one  of
    54  this  chapter  and  shall  be  liable  for any payments for which it may
    55  become responsible pursuant to such section or pursuant to section four-
    56  teen-a of this [chapter] article.

        A. 10349                            3
 
     1    The liability under this chapter of the New  York  independent  livery
     2  driver  benefit fund, inc. shall be limited to: (i) securing the payment
     3  of workers' compensation coverage to cover  those  matters  required  by
     4  article  six-G  of  the executive law for independent livery drivers, as
     5  defined  in such article, whose injury arose out of and in the course of
     6  providing covered services for a livery base, as defined in  such  arti-
     7  cle,  that  is  a registered member of such fund, and (ii) any statutory
     8  penalty resulting from the failure to secure such payment.
     9    2. Determination by the board shall not be given  collateral  estoppel
    10  effect  in any other action or proceeding arising out of the same occur-
    11  rence, other than the determination of  the  existence  of  an  employer
    12  employee relationship.
    13    § 4. This act shall take effect immediately.
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A10349 LFIN:

 NO LFIN
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A10349 Chamber Video/Transcript:

6-3-22Video (@ 07:43:31)Transcript pdf Transcript html
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