Relates to establishing statutory guidelines for return to work by partially disabled workers

Summary of provisions

This bill would amend Workers' Compensation Law Section 15(5-a) to limit its scope to partial disability awards for claimants who are working at a reduction in earnings. It would add a new Workers' Compensation Law Section 15(5-b) to address compensation for partially disabled workers who have no actual earnings. It would re-number existing Workers' Compensation Law Section 15(5-b) as Workers' Compensation Law Section 15(5-c). It would also provide that benefits for partially disabled workers who have actual earnings shall be based on such earnings. It would further provide that benefits for partially disabled workers who have no actual earnings shall be based on their wage earning capacity. It would define the term "voluntary withdrawal from the labor market" and establish it as a defense to a claim for partial disability benefits. It would also establish a standard for labor market attachment to be used in cases of voluntary withdrawal from the labor market.

Justification

The Workers' Compensation Law provides that in cases of partial disability, "the board may in the interest of justice fix such wage earning capacity as shall be reasonable, but not in excess of seventy-five per centum of (the injured worker's) former full time actual earnings, having due regard to the nature of his injury and his physical impairment." (WCL § 15(5-a)). The statute recognizes that a partially disabled worker retains the ability to do some work, and provides compensation only for the loss of wage earning capacity. No compensation is payable for the wage earning capacity the worker retains. If a partially disabled worker returns to work, benefits are awarded based on his or her actual earnings. In the absence of a return to work, the Board must estimate the loss of wage earning capacity and award benefits accordingly (WCL § 15(5-a)). The law does not identify the circumstances in which a partially disabled worker must seek employment as a condition of receiving benefits.

The lack of a statutory standard has resulted in substantial litigation before the Workers' Compensation Board and in the Courts. The issue was considered by a sharply divided Court of Appeals in Matter of Zamora v. New York Neurologic, 19 N.Y.3d 186, 970 N.E.2d 823, 947 N.Y.S.2d 788 (2012). The Court held that the Board could require non-working, partially disabled claimants to show proof of labor market attachment as a condition of receiving benefits, but established no standards.By contrast, the Unemployment Insurance Law specifically states when work must be sought as a condition of

benefits and establishes a statutory standard for adequate attachment to the labor market (Labor Law §§ 591, 593). This bill would provide a statutory standard for labor market attachment in workers' compensation claims. It defines a "voluntary withdrawal from the labor market" as one in which (1) the worker's separation from employment was unrelated to the compensable injury, or (2) the employer demonstrates that the claimant's loss of wages is wholly unrelated to such injury. It would authorize the Board to terminate compensation in cases of voluntary withdrawal from the labor market, and otherwise require the Board to award benefits in accordance with the statute.

It would further permit the Board to award benefits in cases of voluntary withdrawal from the labor market where the claimant is subsequently attached to the labor market through participation in: (1) one of New York State's Department of Labor's reemployment services, (2) the services offered by a One-Stop Career Center, (3) a retraining program, (4) a rehabilitation program by VESID or other board approved rehabilitation program, (5) a job service commonly utilized to secure work within a specific industry, or (6) enrollment and full time attendance in an accredited educational institution to pursue employment within the work restrictions.

Overall, this would preserve and codify the requirement of a causal connection between the injury and the loss of earnings, encourage return to work, expedite delivery of benefits, and reduce litigation.

Prior legislative history

New bill.

Fiscal implications

None.

Effective date

This act shall take effect immediately.