Assemblyman Harry Bronson and State Senator Jessica Ramos have recently introduced Bill A7045 to the NYS Assembly and Senate that proposes sweeping changes to the NYS Workers’ Compensation System. As discussed below, if the bill were to be passed in its present form, it will have an impact on not only injured worker’s rights to potentially pursue a claim against their employer following a work-related injury, but also on how the workers’ compensation claim is handled throughout its duration.
Perhaps one of the most sweeping changes proposed in Bill A7045 is the goal to abrogate the exclusive remedy provision in NYS Workers’ Compensation. Presently, in New York, an injured worker’s sole cause of action (absent certain exceptions, such as a fall from an elevated height while on a construction site) following a work-related injury is to bring forth a workers’ compensation claim. Bill A7045 seeks to permit injured workers to bring a separate cause of action against their employer in any of the three following circumstances:
- The injury occurs as a result of the employer’s violation of a safety statute or regulation;
- The injured workers’ compensation benefits are terminated as a result of the duration caps; or
- The employer fails to secure the payment of compensation for his or her injured employees.
This will further expand an injured worker’s rights to pursue a workers’ compensation claim and also maintain a separate cause of action in a local court. If adopted, this could have a profound impact on the liability of employers following a work-related injury.
Bill A7045 also aims to amend what qualifies as “temporary total disability” in a workers’ compensation claim. Presently, the determination of the total degree of disability is not based on whether the claimant can return to work in a similar capacity as to the work performed when injured. Rather, the determination of a total disability encompasses all work, i.e. can the injured worker at least perform sedentary work?
If there is a finding that an injured worker cannot perform their at-injury job duties but can perform work of a lesser demand, the injured worker will most likely not be found to have a temporary total disability. Bill A7045 seeks to modify this provision to hold that a claimant is temporarily totally disabled if the injured worker has an inability to perform his or her at-injury employment or any modified employment offer by the employer that is consistent with the employee’s disability. This proposed modification will impact how issues such as degree of disability are litigated and handled throughout the course of a workers’ compensation claim.
Bill A7045 also aims to include additional ways in which a claimant can obtain a “permanent total disability” finding in a workers’ compensation claim. Bill A7045 proposes two new ways that a claimant can be found to have a permanent total disability at the time of permanency:
- The inability to perform the full range of sedentary work; or
- The approval for federal social security disability benefits as a result of the compensable accident or occupational disease.
Bill A7045 were to pass in its present form, self-insured employers and carriers may see an increase in permanent total disability findings at the time of permanency.
It is important to note that the above three proposed changes are only portions of Bill A7045. Bill A7045 seeks to amend or change many factors in place in the NYS Workers’ Compensation System. Due to the nature of the changes proposed, employers, self-insured employers, and carriers are encouraged to pay close attention to its development as it could have a longstanding impact on their liability in New York.
For the full text of the current version of Bill A7045, please click here.