New York Workers Compensation Alliance

Thanks to Workers' Compensation Alliance Governor Ed Pitts, Esq. (otherwise known as the "Professor") for the fine synposis of the 2006 New York Workers Comp laws that passed in  Albany contained below.  We hope this is helpful.

Review of Workers’ Compensation Bills

passed in 2006 Legislative Session

Compiled for the WCA by Edward I. Pitts 6/28/06

1. Bills with some significant implications for injured workers:

A8713B [Rules (Farrell)] -- Same as S5612-B [Winner] - Amends WCL §§15, 151 & 13-a

06/21/06 PASSED ASSEMBLY - 06/23/06 PASSED SENATE

SUMMARY OF PROVISIONS: Amends §15(8) to provide a separate category of assessment and payment of costs of the Special Fund for self-insured groups and also provides that the Workers’ Compensation Board may withhold reimbursements from the Special Fund if assessments have not been paid by the self-insured employer or the insurance carrier. Amends §151(2) to provide a separate category of assessment and payment of costs for the administrative expenses borne by group self-insureds. It also provides that self-insured groups shall collect the assessments for the Special Fund §15(8) and §25-a and for the operations of the Board through a surcharge on their policyholders in accordance with rules set forth by the New York Compensation Insurance Rating Board. Amends §13-a (5) to increase the level of prior authorization required for medical services from $500 to $1200.

EXPLANATION: This legislation is intended primarily to place group self-insureds on the same footing as commercial insurance carriers as relates to payment of assessments to support the Special Funds. A similar change in the funding mechanism for Special Funds was adopted in 1999 for commercial carriers, but this change was not applied to self-insureds. This change was in response to a change in an accounting standard issued by the Financial Accounting Standards Board (FASB) that became effective in 1998. It is important to note that this change should not diminish the payments made to support the Special Funds. The statutory funding mechanism that determines the total amount to be paid annually to support these funds will remain the same. Most importantly for injured workers, this bill also raises the pre-approval threshold for medical services from the current $500 to $1200.

S6802 [Maziarz] -- Same as A9836 [John] - Adds WCL §9, Amends WCL §15 & §16

06/22/06 PASSED SENATE - 06/22/06 PASSED ASSEMBLY

SUMMARY OF PROVISIONS: Makes provisions for the deaths or permanent or temporary (partial or total) disabilities of employees of voluntary hospitals due to accident or occupational disease occurring as a result of rescue activity in connection with the World Trade Center attacks. Specific provisions: (1) increases the salary replacement for disabled first responders to 75% of their salary at the time of disability; (2) increases workers' compensation survivors’ benefits for the families of those killed at Ground Zero to the 75% of salary benefit provided to the disabled under this bill; (3) extends date for filing claims with the Board for the disablement or death benefits provided under this act to one year from the effective date of this act.

EXPLANATION: The Legislature and Governor have acted several times since September 11, 2001 to improve benefits and due process for victims of that tragedy. In 2004 he Legislature passed legislation to provide presumptive eligibility for a seventy-five percent of salary disability pension benefit for public employee Ground Zero first responders. The legislation passed for public employees in 2004 does not provide similar relief to private voluntary hospital rescue employees, some of which are represented by 1199 SEIU. These workers were primarily emergency medical technicians and paramedics employed by and dispatched from private voluntary hospitals in the vicinity of Ground Zero. They suffered the same injuries as the public employee first responders. Because the State does not determine their private sector disability pension benefits, it is proper that the State provide equal compensation to them through the workers' compensation system.

S8348 [Marchi] -- Same as A11944 [Rules (Bing)] - Adds WCL Art 8-A, §§161 – 167

06/21/06 PASSED SENATE - 06/22/06 PASSED ASSEMBLY

SUMMARY OF PROVISIONS: Adds a new Article 8-a to the Workers' Compensation Law ("WCL") to provide as follows:

§161 provides definitions of "Participant in World Trade Center rescue, recovery and cleanup operations", "World Trade Center site", "Qualifying condition" and "Disablement" as those terms are used in the new article. "Qualifying condition" is defined as a latent disease or condition resulting from a hazardous exposure during participation in the rescue, recovery or clean-up operation. "Disablement" is defined to have the same meaning as the term is used in the WCL in reference to an occupational disease.

§162 requires participants, in order to qualify for special notice and claims filing provisions for a qualifying condition, to file a written and sworn statement with the Workers' Compensation Board (WCB) within eighteen months of the effective date of the legislation stating the dates that person worked in the operation and name of the employer. The employer and carrier are to receive a copy.

§163 provides that notice of injury or death from a qualifying condition shall be given within two years after the disablement of the participant or after the participant knew or should have known that the qualifying condition was causally related to participation in rescue, recovery or clean-up operations, whichever is later.

§164 provides that the date of disablement for a claim by a participant for a qualifying condition shall be treated as the occurrence of an accident so as to provide a statute of limitations standard to these claims the same as that which applies to an occupational disease claim.

§165 provides that upon receiving a duly filed registration statement for a qualifying condition, the WCB shall reopen any previous claim for such a condition disallowed under WCL § 18 or § 28 and re-determine the claim applying the liberal notice and claims filing provisions as provided in this bill.

§166 provides that the employer of any participant in rescue, recovery and clean-up operations shall be liable for any claim for a qualifying condition that arose out of and in the course of employment and that the insurance carrier covering the employer on the last day of participation in rescue, recovery and clean-up operations has coverage of such claims.

            §167 provides that the Uninsured Employers' Fund shall administer and pay the claims of those who participated as volunteers but that benefits shall be paid only to the extent that funds appropriated by the federal government for such purpose are available.

EXPLANATION: This bill requires that claims for latent conditions alleged to be causally related to a hazardous exposure while participating in rescue, recovery or cleanup operations at the World Trade Center be treated for claims filing (statute of limitations) and notice purposes in the same manner as an occupational disease. Treatment as an accident has caused persons with such latent conditions to be denied benefits.

2. Bills with substantive implications for injured workers:

S4186 [Maziarz] -- Same as A5507 [Ortiz] - Amends WCL §25

03/06/06 PASSED SENATE - 05/22/06 PASSED ASSEMBLY

SUMMARY OF PROVISIONS: Amends WCL §25(3) to require the chair of the Workers' Compensation Board to transfer a controverted case to a special part for an expedited hearing if such case has not been resolved within two years.

EXPLANATION: This legislation is intended to speed the resolution of controverted cases by making it mandatory rather than discretionary for a controverted case to be transferred to an expedited hearing part if the case has been pending before the Board for two years. 

S6854 [Maziarz] -- Same as A9846 [Abbate] - Amends Civil Service L §71

03/27/06 PASSED SENATE - 06/07/06 PASSED ASSEMBLY

SUMMARY OF PROVISIONS: Amends Civil Service Law §71 to permit civil service employees separated from service by reason of disability due to an injury on the job a leave of absence of up to eighteen months when the disability has resulted from an injury, and for two years when it is the result of an assault in the line of duty.

EXPLANATION: By extending the leave of absence period from the current one year to up to eighteen months when the disability has resulted from an injury, and for two years when it is the result of an assault in the line of duty, more temporarily disabled workers would be restored to the workforce rather than be terminated. Workers who are injured in the performance of their duties should be allowed enough time to fully recover from their injuries without facing the loss of their right to return to work.

3. Bills making primarily technical revisions to the law:

A8840C [Rules (John)] -- Same as S5728-C [Rules] - Amends WCL §13

03/20/06 PASSED ASSEMBLY - 06/20/06 PASSED SENATE

SUMMARY OF PROVISIONS: Amends WCL §13 to provide for proper payment for spinal implants. Section one of the bill regulates the rate of reimbursement to general hospitals in addition to the provider's documented, paid cost for any implantable hardware and instrumentation. Such paid costs may include an additional ten percent, not to exceed three hundred and fifty dollars. Section two of the bill provides for a study that shall document the efficacy of the utilization of these spinal procedures in returning workers to their jobs following surgery.

EXPLANATION: Currently the New York Workers' Compensation system does not cover the cost of surgical implants to hospitals with medical services associated with spine surgeries. One of the reasons is that the surgical implants, for the most part, represent new technology that is not reflected in the reimbursement rates. This bill is intended to guarantee treatment of Workers Compensation claimants at the same level of care provided to patients with other insurance benefits.

S718A [Lavalle] -- Same as A1458-A [Brodsky] - Amends WCL §3

06/22/06 PASSED SENATE - 06/23/06 PASSED ASSEMBLY

SUMMARY OF PROVISIONS: Amends WCL §3 to include Lyme Disease (Lyme Borrcliosis) as an occupational disease that is compensable under the workers' compensation law.

EXPLANATION: The spread of Lyme Disease on Long Island and other parts of New York State among workers who are involved in outdoor activities has been growing steadily in the past few years. Since persons who work outdoors may contract this disease it is being added to the list of covered occupational diseases.

A4397 [Ortiz] -- Same as S4946 [Maziarz] - Amends WCL §25

04/05/06 PASSED ASSEMBLY - 06/05/06 PASSED SENATE

SUMMARY OF PROVISIONS: Amends WCL §25(3) to require the chair of the Workers' Compensation Board to create a special part for hearings and proceedings of claims submitted by injured apparel employees.

EXPLANATION: Sponsors of this bill submit that given the complex nature of the garment industry there are many difficulties that arise in the adjudication of apparel industry cases before the Workers' Compensation Board. The sponsors contend that creation of a special unit within the Workers' Compensation Board designed specifically to process apparel industry claims will improve the accuracy and efficiency of the Board in adjudicating these cases.

A5399A [Abbate] -- No same as   - Amends WCL §§ 2 & 201 and Labor L §511

06/22/06 PASSED ASSEMBLY - 06/23/06 PASSED SENATE

SUMMARY OF PROVISIONS: Amends Labor Law §511 by adding a new subdivision to define media sales representative as an independent contractor engaged in the sale or renewal of magazine subscriptions or the sale or renewal of magazine advertising space and excludes qualified media sales representatives from the term "employment". Amends WCL §2(4) so that the term "employee" does not include the services of a media sales representative under certain conditions. Amends WCL §2(5) to specify that the term "employment" does not include the services of a media sales representative under certain conditions. Amends WCL §201 so that the term "employed" shall not include the services of a media sales representative under certain conditions.

EXPLANATION: This bill is intended to clarify that those individuals who work as media sales representatives, and function as independent contractors are not considered employees. So long as these individuals perform services pursuant to written contracts and have no expectation of receiving employment related benefits, they would be excluded from coverage as employees.

A7066 [Colton] -- Same as S6435 [Maltese] - Amends WCL §54

01/31/06 PASSED ASSEMBLY - 05/22/06 PASSED SENATE

06/01/06 DELIVERED TO GOVERNOR

SUMMARY OF PROVISIONS: Amends WCL §54(8) to authorize the partners of registered limited liability partnerships and members of limited liability companies and professional service limited liability companies to purchase workers' compensation coverage for themselves.

EXPLANATION: The WCL provides that all employers must cover their employees for workers' compensation either by purchasing insurance or by self-insuring. The law creating limited liability companies, limited liability partnerships and professional services limited liability companies in New York failed to address how the partners or members of such entities should be treated for purposes of workers' compensation. This amendment clarifies that these individuals are owners or partners of such organizations, and not employees, and thus they should be treated in a manner similar to that of other business owners.

GREAT WORK to all that participated in passing this very important LAW.
I Donna Gilman RN had to fight for spinal surgery when my spinal cord was flattened for "OVER A YEAR" causing many added problems and the self insurers lawyer closed my case. I suffer 24/7 with horrendous pain and live on Social Security. This insurer and my employer a local hospital should be criminally prosecuted. NEW YORK STATE WORKERS COMP. BOARD MEMBERS...NON MEDICAL PEOPLE SUPPORT THIS CORRUPTION. MAYBE a class action civil suit against NY WORKERS COMP and the self insurers for myself and other injured workers that were caused further damage because of DELAYS and out right negligence. Injured Workers that should still be rightfully receiving benefits and are NOT. Go to www.petitiononline/mod perl/signed.lane
READ ALL THE HORROR STORIES. These people need their compensation that is due them as I am.
Thank You again to all for this ALLIANCE website. You are much appreciated .
Donna Gilman RN (spinal injured worker)

GREAT WORK to all that participated in passing this very important LAW.
I Donna Gilman RN had to fight for spinal surgery when my spinal cord was flattened for "OVER A YEAR" causing many added problems and the self insurers lawyer closed my case. I suffer 24/7 with horrendous pain and live on Social Security. This insurer and my employer a local hospital should be criminally prosecuted. NEW YORK STATE WORKERS COMP. BOARD MEMBERS...NON MEDICAL PEOPLE SUPPORT THIS CORRUPTION. MAYBE a class action civil suit against NY WORKERS COMP and the self insurers for myself and other injured workers that were caused further damage because of DELAYS and out right negligence. Injured Workers that should still be rightfully receiving benefits and are NOT. Go to www.petitiononline/mod perl/signed.lane
READ ALL THE HORROR STORIES. These people need their compensation that is due them as I am.
Thank You again to all for this ALLIANCE website. You are much appreciated .
Donna Gilman RN (spinal injured worker)

GREAT WORK to all that participated in passing this very important LAW.
I Donna Gilman RN had to fight for spinal surgery when my spinal cord was flattened for "OVER A YEAR" causing many added problems and the self insurers lawyer closed my case. I suffer 24/7 with horrendous pain and live on Social Security. This insurer and my employer a local hospital should be criminally prosecuted. NEW YORK STATE WORKERS COMP. BOARD MEMBERS...NON MEDICAL PEOPLE SUPPORT THIS CORRUPTION. MAYBE a class action civil suit against NY WORKERS COMP and the self insurers for myself and other injured workers that were caused further damage because of DELAYS and out right negligence. Injured Workers that should still be rightfully receiving benefits and are NOT. Go to www.petitiononline/mod perl/signed.lane
READ ALL THE HORROR STORIES. These people need their compensation that is due them as I am.
Thank You again to all for this ALLIANCE website. You are much appreciated .
Donna Gilman RN (spinal injured worker)

I have had a back injury from 1985, it took 15 years to get anything done so I could get some relief. A class action suit would do alright. Insurance companies are for big money that is paid to them by the people, but they aren't for the people. I learned to advocate for myself and I hear of long waits as the problem gets worse. And injured people are fussing over the time they have to wait. It needs to get done in an more timely and orderly fashion so the injured don't make the injury worse, as what happened to me. I am still fighting for my just dues.