Increase Death Benefit Payments

Section 1. Section 16 of the workers' compensation law, as amended by chapter 550 of the laws of 1978, subdivision 1 as amended by chapter 245 of the laws of 2005, subdivisions 1-a, 1-b, 1-c, 2, 3, 3-a and 4 as amended by chapter 168 of the laws of 1979, subdivisions 1-d, 2-b, 3-b, 4-c and 4-d as added and subdivision 5 as amended by chapter 689 of the laws of 2007, subdivision 2-a as amended by chapter 174 of the laws of 1981, subdivision 4-a as amended by chapter 509 of the laws of 1985 and subdivision 4-b as added by chapter 296 of the laws of 1990, is amended to read as follows:

§ 16. Death benefits. If the injury causes death, the compensation shall be known as a death benefit and shall be payable in the amount and to or for the benefit of the persons following:

1. Funeral expenses. The chair shall prepare and establish a schedule for the state or schedules limited to defined localities of maximum charges and fees for such funeral expenses, to be determined in accordance with, and to be subject to change pursuant to[,] rules promulgated by the chair. Before preparing such schedule for the state or schedules for limited localities, the chair shall request the president of the New York state funeral directors' association to submit to the chair a report on the amount of remuneration deemed by such association to be fair and adequate for the types of funeral services rendered under this chapter, but consideration shall also be given to the views of other interested parties. The amounts payable by the employer for such services shall be the actual fees and charges up to the maximum estab-

EXPLANATION--Matter in italics (underscored) is new; matter in brackets

[ ] is old law to be omitted.

LBD09336-01-7

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lished by such schedule. Provided, however, no such schedule of charges and fees shall apply where a firefighter dies from injuries received in the line of duty as a direct result of firefighting or where a police officer dies from injuries received in the line of duty as a direct result of law enforcement activities, where such funeral expenses are reasonable. If such funeral expenses shall have been paid by the claimants entitled to compensation under this section or by others, the funeral expenses awarded shall be made payable to such claimants or others, otherwise they shall be made payable to the undertaker who shall have provided burial. Funeral expenses shall be awarded in case of all injuries causing death including cases in which there are no persons entitled to other compensation under this chapter.

1-a. For the purpose of this section, (1) the term "dependent blind or physically disabled" as used herein in relation to dependent children shall be deemed to mean totally blind or physically disabled children whose disablement is total and permanent, (2) the term "surviving spouse" shall be deemed to mean the legal spouse but shall not include a spouse who has abandoned the deceased, and (3) the term "abandoned" shall be deemed to mean such an abandonment as would be sufficient under section two hundred of the domestic relations law to sustain a judgment of separation on that ground provided that a spouse who reconciled with the deceased prior to the date of the death shall not be considered to have abandoned the deceased.

1-b. If there be a surviving spouse and no child of the deceased under the age of eighteen years and no child of any age dependent blind or physically disabled, and the death occurs on or after July first, nineteen hundred forty-eight, and prior to January first, nineteen hundred seventy-eight, to such spouse forty per centum of the average wages of the deceased, together with applicable cost-of-living adjustments, during widowhood or widowerhood with two years' compensation in one sum, upon remarriage; and where the death occurred prior to July first, nineteen hundred forty-eight, to such wife (or dependent husband) thirty per centum of such wages, together with applicable cost-of-living adjustments, during widowhood (or dependent widowerhood) with two years' compensation in one sum, upon remarriage.

1-c. If there be a surviving spouse and no child of the deceased under the age of eighteen years or under the age of twenty-three years if enrolled and attending as a full time student in an accredited educational institution and such enrollment and full time attendance is certified by such institution and no child of any age dependent blind or physically disabled, and the death occurs on or after January first, nineteen hundred seventy-eight, to such spouse [sixty-six and twothirds] seventy-five per centum of the average wages of the deceased, together with applicable cost-of-living adjustments, during widowhood or widowerhood with two years' compensation, in one sum, upon remarriage. Where the death occurs on or after January first, nineteen hundred seventy-eight, and the spouse is receiving the survivors insurance benefits under the social security act, the death benefit payable under this section shall be reduced in accordance with the provisions of table No. 1 below by five per centum of the spouse's share of the survivor's insurance benefits under the social security act for each ten dollars of deceased's average weekly wage in excess of one hundred dollars provided that in no case shall such reduction exceed fifty per centum of said spouse's share of the survivors insurance benefits under the social security act. Cost-of-living adjustments shall not be included in the

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calculation of the deceased's average weekly wage for purposes of calculation of the offset reduction.

TABLE No. I

Offset provisions applicable in death benefits

where there is a sole surviving spouse

AVERAGE WEEKLY WAGE PERCENTAGE OF SPOUSE'S

SHARE OF SURVIVORS

INSURANCE BENEFITS

over $100 up to and including $110 ................................... 5 over $110 up to and including $120 .................................. 10 over $120 up to and including $130 .................................. 15 over $130 up to and including $140 .................................. 20 over $140 up to and including $150 .................................. 25 over $150 up to and including $160 .................................. 30 over $160 up to and including $170 .................................. 35 over $170 up to and including $180 .................................. 40 over $180 up to and including $190 .................................. 45 over $190 up to and including $200 .................................. 50 over $200 ........................................................... 50

1-d. If there be a surviving spouse of an employee of a private voluntary hospital killed in a World Trade Center rescue, who passed a physical examination upon employment as a rescue worker that failed to reveal evidence of a condition that was the proximate cause of death, and no child of the deceased under the age of eighteen years, or under the age of twenty-three years if enrolled and attending as a full-time student in an accredited educational institution and such enrollment and full-time attendance is certified by such institution, and no child of any age dependent blind or physically disabled, to such spouse seventyfive per centum of the average wages of the deceased, together with applicable cost-of-living adjustments, during widowhood or widowerhood, with two years' compensation, in one sum, upon remarriage. Where such death occurs, and the spouse is receiving the survivors insurance benefits under the social security act, the death benefit payable under this section shall be reduced in accordance with the provisions of table No. I in subdivision one-c of this section by five per centum of the spouse's share of the survivor's insurance benefits under the social security act for each ten dollars of deceased's average weekly wage in excess of one hundred dollars; provided that in no case shall such reduction exceed fifty per centum of such spouse's share of the survivors insurance benefits under the social security act. Cost-of-living adjustments shall not be included in the calculation of the deceased's average weekly wage for purposes of calculation of the offset reduction.

2. If there be a surviving spouse and a surviving child or children of the deceased under the age of eighteen years or a surviving child or children of any age dependent blind or physically disabled, and the death occurs on or after July first, nineteen hundred forty-eight, and prior to January first, nineteen hundred seventy-eight, to such spouse [thirty] forty per centum of the average wages of the deceased, together with applicable cost-of-living adjustments, during widowhood or widowerhood with two years' compensation in one sum, upon remarriage; and the additional amount of [twenty] thirty-five per centum of such wages, together with applicable cost-of-living adjustments, for each such child until the age of eighteen years or until the removal of the dependency

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of the blind or physically disabled child or children; in case of the subsequent death or remarriage of such surviving spouse any surviving child of the deceased employee, at the time under eighteen years of age or dependent through mental or physical infirmity, shall have his compensation increased to [thirty] thirty-five per centum of such wages, together with applicable cost-of-living adjustments, and the same shall be payable until he shall reach the age of eighteen years or until such dependent blind or physically disabled condition shall have been removed; provided that the total amount payable shall in no case exceed [sixty-six and two-thirds] seventy-five per centum of such wages. Costof-living adjustments shall not be included in the calculation of the deceased's average weekly wage for purposes of calculation of the maximum amount payable. Upon statutory termination of compensation payments to all such children, the compensation of the surviving spouse shall be increased to [forty] seventy-five per centum of such wages, together with applicable cost-of-living adjustments, with two years' compensation, at such rate, in one sum, upon remarriage.

If there be a surviving wife (or dependent husband) and any of the aforementioned surviving children, and the death occurred prior to July first, nineteen hundred forty-eight, to such wife (or dependent husband) [thirty] forty per centum of the average wages of the deceased, together with applicable cost-of-living adjustments, during widowhood (or dependent widowerhood) with two years' compensation in one sum, upon remarriage; and the additional amount of ten per centum of such wages, together with applicable cost-of-living adjustments, for each such child until eighteen years of age or until the removal of the dependency of the blind or physically disabled child or children; in case of the subsequent death or remarriage of such surviving wife (or dependent husband) any surviving child of the deceased shall have his compensation increased to fifteen per centum of such wages, together with applicable cost-of-living adjustments, until he shall reach the age of eighteen years or until such dependent blind or physically disabled condition shall have been removed; provided that the total amount payable shall in no case exceed [sixty-six and two-thirds] seventy-five per centum of such wages. Cost-of-living adjustments shall not be included in the calculation of the deceased's average weekly wage for purposes of calculation of the maximum amount payable.

The board may in its discretion require the appointment of a guardian for the purpose of receiving the compensation of a minor child or a dependent blind or physically disabled child. In the absence of such a requirement by the board the appointment of a guardian for such purposes shall not be necessary.

2-a. If there be a surviving spouse and a surviving child under the age of eighteen years or under the age of twenty-three years if enrolled and attending as a full time student in an accredited educational institution and such enrollment and full time attendance is certified by such institution or a surviving child of any age dependent blind or physically disabled and the death occurs on or after January first, nineteen hundred seventy-eight, to such spouse [thirty-six and two-thirds] forty per centum of the average wages of the deceased, together with applicable cost-of-living adjustments, during widowhood or widowerhood with two years' compensation in one sum, upon remarriage; and [thirty] thirtyfive per centum of such wages, together with applicable cost-of-living adjustments, to such child under the age of eighteen years or under the age of twenty-three years if enrolled and attending as a full time student in an accredited educational institution and such enrollment and

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