Expand Workers' Compensation Access

Section 1. The opening paragraph of section 11 of the workers' compensation law, as amended by section 8 of part SS of chapter 59 of the laws of 2017, is amended to read as follows:

The liability of an employer prescribed by the last preceding section shall be exclusive and in place of any other liability whatsoever, to such employee, his or her personal representatives, spouse, parents, dependents, distributees, or any person otherwise entitled to recover damages, contribution or indemnity, at common law or otherwise, on account of such injury or death or liability arising therefrom, except [that if an] in the following events: (i) the employer's violation of an applicable statute or regulation involving workplace safety was a proximate cause of the employee's injury or death; (ii) the employee's benefits have been terminated pursuant to paragraph w of subdivision three of section fifteen of this article; or (iii) the employer fails to secure the payment of compensation for his or her injured employees and their dependents as provided in section fifty of this article. In such events, an injured employee, or his or her legal representative in case of death results from the injury, may, at his or her option, elect to claim compensation under this chapter, or to maintain an action in the courts for damages on account of such injury[; and in such an action it shall not be necessary to plead or prove freedom from contributory 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

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caused by the negligence of a fellow servant nor that the employee assumed the risk of his or her employment, nor that the injury was due to the contributory negligence of the employee.] where an action is brought pursuant to the employee's benefits being terminated pursuant to paragraph w of subdivision three of section fifteen of this article, any applicable statute of limitations shall be tolled from the date of injury until the date the employee's benefits are terminated. The employer shall be entitled to take credit for compensation paid under this chapter against any damages awarded in an action brought in the courts for damages. The liability under this chapter of The New York Jockey Injury Compensation Fund, Inc. created under section two hundred twenty-one of the racing, pari-mutuel wagering and breeding law shall be limited to the provision of workers' compensation coverage to jockeys, apprentice jockeys, exercise persons, and at the election of the New York Jockey Injury Compensation Fund, Inc., with the approval of the New York state gaming commission, employees of licensed trainers or owners licensed under article two or four of the racing, pari-mutuel wagering and breeding law and any statutory penalties resulting from the failure to provide such coverage.

§ 2. Section 12 of the workers' compensation law is REPEALED.

§ 3. Subdivisions (a), (b) and (g) of section 13 of the workers' compensation law, subdivision (a) as amended by chapter 6 of the laws of 2007, the opening paragraph of subdivision (a) as amended by chapter 23 of the laws of 2016, subdivision (b) as amended by chapter 113 of the laws of 1946 and subdivision (g) as separately amended by chapters 834 and 922 of the laws of 1990, are amended to read as follows:

(a) The employer shall promptly provide for an injured employee such medical, dental, surgical, optometric or other attendance or treatment, nurse and hospital service, medicine, optometric services, crutches, eye-glasses, false teeth, artificial eyes, orthotics, prosthetic devices, functional assistive and adaptive devices and apparatus for such period as the nature of the injury or the process of recovery may require. The employer shall be liable for the payment of the expenses of medical, dental, surgical, optometric or other attendance or treatment, nurse and hospital service, medicine, optometric services, crutches, eye-glasses, false teeth, artificial eyes, orthotics, prosthetic devices, functional assistive and adaptive devices and apparatus, as well as artificial members of the body or other devices or appliances necessary in the first instance to replace, support or relieve a portion or part of the body resulting from and necessitated by the injury of an employee, for such period as the nature of the injury or the process of recovery may require, and the employer shall also be liable for replacements or repairs of such artificial members of the body or such other devices, eye-glasses, false teeth, artificial eyes, orthotics, prosthetic devices, functional assistive and adaptive devices or appliances necessitated by ordinary wear or loss or damage to a prosthesis, with or without bodily injury to the employee. Damage to or loss of a prosthetic device shall be deemed an injury except that no disability benefits shall be payable with respect to such injury under section fifteen of this article. Such a replacement or repair of artificial members of the body or such other devices, eye-glasses, false teeth, artificial eyes, orthotics, prosthetic devices, functional assistive and adaptive devices or appliances or the providing of medical treatment and care as defined herein shall not constitute the payment of compensation under section twenty-five-a of this article. All fees and other charges for such treatment and services shall be limited to such charges as prevail in

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the same community for similar treatment of injured persons of a like standard of living.

The chair shall [prepare and] establish a committee to determine the schedule for the state, or schedules limited to defined localities, of charges and fees for such medical treatment and care, and including all medical, dental, surgical, optometric or other attendance or treatment, nurse and hospital service, medicine, optometric services, crutches, eye-glasses, false teeth, artificial eyes, orthotics, prosthetic devices, functional assistive and adaptive devices and apparatus [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 members of the committee shall be the president of the medical society of the state of New York [and], the president of the New York state osteopathic medical society [to submit to him or her a report on], the president of the New York state society of orthopedists, the president of the New York state AFL/CIO, the president of the business council of the state of New York, an individual designated by the senate majority leader, an individual designated by the speaker of the assembly, and the chair of the board. The committee shall meet annually in order to determine the amount of remuneration deemed [by such society] to be fair and adequate for the types of medical care to be rendered under this chapter, but consideration shall be given to the view of other interested parties. In the case of physical therapy fees schedules the chair shall request the president of a recognized professional association representing physical therapists in the state of New York to submit to [him or her] the committee a report on the amount of remuneration deemed by such association to be fair and reasonable for the type of physical therapy services rendered under this chapter, but consideration shall be given to the views of other interested parties. The chair shall also prepare and establish a schedule for the state, or schedules limited to defined localities, of charges and fees for outpatient hospital services not covered under the medical fee schedule previously referred to in this subdivision, 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 hospital association of New York state to submit to [him or her] the committee a report on the amount of remuneration deemed by such association to be fair and adequate for the types of hospital outpatient care to be rendered under this chapter, but consideration shall be given to the views of other interested parties. In the case of occupational therapy fees schedules the chair shall request the president of a recognized professional association representing occupational therapists in the state of New York to submit to [him or her] the committee a report on the amount of remuneration deemed by such association to be fair and reasonable for the type of occupational therapy services rendered under this chapter, but consideration shall be given to the views of other interested parties. The amounts payable by the employer for such treatment and services shall be the fees and charges established by such schedule. Nothing in this schedule, however, shall prevent voluntary payment of amounts higher or lower than the fees and charges fixed therein, but no physician rendering medical treatment or care, and no physical or occupational therapist rendering their respective physical or occupational therapy services may receive payment in any higher amount unless such increased amount has been authorized by the employer, or by decision as provided in section

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thirteen-g of this article. Nothing in this section shall be construed as preventing the employment of a duly authorized physician on a salary basis by an authorized compensation medical bureau or laboratory.

(b) In the case of persons, injured or residing and receiving medical treatment outside of this state, but entitled to compensation or benefits under this chapter, the provisions as to selection of authorized physicians and the rules and regulations of the board governing medical treatment within the state shall be inapplicable. In such cases the employer shall promptly provide all necessary medical treatment and care but if the employer fail to provide the same, after request by the injured employee such injured employee may do so at the expense of the employer. The employee shall not be entitled to recover any amount expended by him for such treatment or services unless he shall have requested the employer to furnish the same and the employer shall have refused or neglected to do so, or unless the nature of the injury required such treatment and services and the employer or his superintendent or foreman having knowledge of such injury shall have neglected to provide the same; nor shall any claim for medical or surgical treatment be valid and enforceable, as against such employer, unless within twenty days following the first treatment, the physician giving such treatment, furnish to the employer and the chairman a report of such injury and treatment, on a form prescribed by the chairman. The board may, however, by the unanimous vote of a panel of not less than three members qualified to act, excuse the failure to give such notice within twenty days when it finds it to be in the interest of justice to do so, and may, subject to the limitations contained in section twenty-eight of this [chapter] article, make an award for the reasonable value of such medical or surgical treatment. All fees and other charges for such treatment and services, whether furnished by the employer or otherwise, shall be subject to regulation by the board as provided in section twenty-four of this [chapter] article, and shall be limited to such charges as prevail in the same community for similar treatment of injured persons of a like standard of living.

(g) Every hospital operating in the state shall, within twenty days of receiving a written request by a claimant, claimant's representative, employer, carrier or special fund created under this chapter, provide to such claimant, claimant's representative, employer, carrier or special fund for use in board proceedings the medical records of an employee who has received treatment in such hospital and who is claiming benefits under this chapter. Each hospital shall designate at least one officer or employee who shall be responsible for provision of such records on written request, and to whom the board, claimant, claimant's, employer, carrier representative or special fund may address informal inquiries regarding provision of such records.

No hospital shall be required to produce the records of any claimant pursuant to this section without receiving the cost of copying such records as determined by the chair. Such cost shall be paid by the requesting party except that the employer or carrier or special fund shall reimburse a claimant or claimant's representative the cost of an initial set of such records where the request is made by a claimant or claimant's representative. Should the hospital not be able to provide the requested records within twenty days, they shall notify in writing the party requesting the records of the reason why the records were not provided and the date on which they will be provided. Such date shall be within a reasonable period of time, but shall not exceed thirty days. Failure to either provide the records within twenty days or to provide a

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