Bill Text: NY A05561 | 2015-2016 | General Assembly | Introduced
Bill Title: Provides that benefits for partially disabled workers who have actual earnings shall be based on such earnings; provides that benefits for partially disabled workers who have no actual earnings shall be based on their wage earning capacity.
Spectrum: Partisan Bill (Democrat 3-0)
Status: (Introduced - Dead) 2016-05-19 - advanced to third reading cal.662 [A05561 Detail]
Download: New_York-2015-A05561-Introduced.html
S T A T E O F N E W Y O R K
________________________________________________________________________
5561
2015-2016 Regular Sessions
I N A S S E M B L Y
February 27, 2015
___________
Introduced by M. of A. TITUS -- read once and referred to the Committee
on Labor
AN ACT to amend the workers' compensation law, in relation to establish-
ing statutory guidelines for return to work by partially disabled
workers
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. Subdivisions 5-a and 5-b of section 15 of the workers'
2 compensation law, subdivision 5-a as amended by chapter 113 of the laws
3 of 1946 and subdivision 5-b as added by chapter 778 of the laws of 1945,
4 are amended to read as follows:
5 5-a. Determination of wage earning capacity IN CASE OF ACTUAL
6 EARNINGS. The wage earning capacity of an injured employee in cases of
7 partial disability shall be determined by his actual earnings,
8 [provided, however, that if he has no such actual earnings the board may
9 in the interest of justice fix such wage earning capacity as shall be
10 reasonable, but not in excess of seventy-five per centum of his former
11 full time actual earnings, having due regard to the nature of his injury
12 and his physical impairment] IF ANY.
13 5-b. DETERMINATION OF WAGE EARNING CAPACITY IN ABSENCE OF ACTUAL EARN-
14 INGS. THE WAGE EARNING CAPACITY OF AN INJURED EMPLOYEE IN CASES OF
15 PARTIAL DISABILITY SHALL, IN THE ABSENCE OF ACTUAL EARNINGS, BE DETER-
16 MINED BY THE BOARD. THE BOARD SHALL IN THE INTEREST OF JUSTICE FIX SUCH
17 WAGE EARNING CAPACITY AS MAY BE REASONABLE, BUT NOT IN EXCESS OF SEVEN-
18 TY-FIVE PER CENTUM OF THE INJURED EMPLOYEE'S FORMER FULL TIME ACTUAL
19 EARNINGS, HAVING DUE REGARD TO THE NATURE OF THE INJURY, PHYSICAL
20 IMPAIRMENT, AND OTHER RELEVANT FACTORS. THE BOARD SHALL AWARD COMPEN-
21 SATION BASED ON THE INJURED EMPLOYEE'S LOSS OF WAGE EARNING CAPACITY.
22 (A) VOLUNTARY WITHDRAWAL FROM THE LABOR MARKET. NOTWITHSTANDING ANY
23 PROVISION TO THE CONTRARY, THE BOARD MAY DECLINE TO AWARD COMPENSATION
24 IF IT FINDS THAT THE INJURED EMPLOYEE HAS VOLUNTARILY WITHDRAWN FROM THE
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD08185-01-5
A. 5561 2
1 LABOR MARKET. VOLUNTARY WITHDRAWAL FROM THE LABOR MARKET IS DEFINED AS
2 SEPARATION FROM EMPLOYMENT FOR REASONS UNRELATED TO THE COMPENSABLE
3 INJURY, INCLUDING BUT NOT LIMITED TO: TERMINATION FOR CAUSE; LAYOFF;
4 VOLUNTARY RESIGNATION OF EMPLOYMENT; RETIREMENT DUE SOLELY TO AGE OR
5 YEARS OF SERVICE; OR UNJUSTIFIED REFUSAL OF WORK OFFERED BY THE EMPLOYER
6 WHICH IS CONSISTENT WITH THE CLAIMANT'S MEDICAL RESTRICTIONS.
7 (B) AWARD AFTER VOLUNTARY WITHDRAWAL FROM THE LABOR MARKET. IF IT
8 FINDS A VOLUNTARY WITHDRAWAL FROM THE LABOR MARKET, THE BOARD SHALL
9 AWARD BENEFITS IF THE CLAIMANT IS SUBSEQUENTLY ATTACHED TO THE LABOR
10 MARKET THROUGH PARTICIPATION IN: (I) ONE OF NEW YORK STATE'S DEPARTMENT
11 OF LABOR'S REEMPLOYMENT SERVICES, (II) THE SERVICES OFFERED BY A
12 ONE-STOP CAREER CENTER, (III) A RETRAINING PROGRAM, (IV) A REHABILI-
13 TATION PROGRAM BY VESID OR OTHER BOARD APPROVED REHABILITATION PROGRAM,
14 (V) A JOB SERVICE COMMONLY UTILIZED TO SECURE WORK WITHIN A SPECIFIC
15 INDUSTRY, (VI) ENROLLMENT AND FULL TIME ATTENDANCE IN AN ACCREDITED
16 EDUCATIONAL INSTITUTION TO PURSUE EMPLOYMENT WITHIN THE WORK
17 RESTRICTIONS, OR (VII) RETURN TO WORK.
18 5-C. Non-schedule adjustments. Notwithstanding any other provision of
19 this chapter, in any case coming within the provisions of subdivisions
20 three or five of this section, in which the right to compensation has
21 been established and compensation has been paid for not less than three
22 months, in which the continuance of disability and of future earning
23 capacity cannot be ascertained with reasonable certainty, the board may,
24 in the interest of justice, approve a non-schedule adjustment agreed to
25 between the claimant and the employer or his insurance carrier. The
26 board shall require, before approving any such agreement, that there be
27 an examination of the claimant in accordance with section nineteen of
28 this [chapter] ARTICLE, and such approval shall only be given when it is
29 found that the adjustment is fair and in the best interest of the claim-
30 ant. The board may, in such case, order all future compensation to be
31 paid in one or more lump sums or periodically, and any such adjustment
32 shall be regarded as a closing of the claim unless the board find upon
33 proof that there has been a change in condition or in the degree of
34 disability of claimant not found in the medical evidence and, therefore,
35 not contemplated at the time of the adjustment.
36 S 2. This act shall take effect immediately.
