S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                         2768
                              2015-2016 Regular Sessions
                                   I N  S E N A T E
                                   January 29, 2015
                                      ___________
       Introduced  by  Sen.  SAVINO -- read twice and ordered printed, and when
         printed to be committed 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
       S. 2768                             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.