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Governor Hochul Signs Workers' Compensation Bills at end of 2021

A number of workers' compensation bills were signed into law by New York Governor Kathy Hochul to close out 2021. The first creates a schedule for attorney fees and removes much of the Board’s discretion regarding same. The new law adds subdivisions 2 and 3 to WCL §24 and provides that the Board “shall” approve fee applications “in an amount commensurate with the services rendered and the amount of compensation awarded, having due regard for the financial state of the claimant” in accordance with the following schedule:

(a) One third of a week’s compensation for continuing payments
(b) 15% of a retroactive award increase over prior payments
(c) 15% of SLU and SFD awards less prior payments
(d) 15% of PTD and PPD classification awards less prior payments, plus a sum equaling 15 weeks of the weekly rate
(e) 15% of Death awards less prior payments, plus 15 weeks at the weekly rate
(f) 15% of Section 32 Settlement award and waiver of any prior fees awarded but not accrued.

Despite stating that fees shall be "commensurate with services rendered," the amendment seems to indicate that the Board must award fees in accordance with this schedule, regardless of the amount of work the attorney performed. The fact that the language provides that the Board “shall” award in accordance with the schedule implies that the Board has little discretion on fees. The Governor’s signing memorandum references some technical changes to the law, which are now the subject of Senate Bill S7762, currently working its way through the legislature. This bill will push the effective date for the attorney fee schedule to 1/1/23. Additionally, the bill will require written fee applications for fees more than $1,000.00. Significantly, the bill states that benefits allocated towards future medical expenses in Section 32 agreement shall not be included in the calculation of the fee. Senate Bill S7762 has been passed by both the Senate and the Assembly. Thus, the bill will presumably be signed by the Governor in the near future.

The next bill, signed on 12/23/21, concerns the Uninsured Employers Fund (UEF) and adds a new subdivision 6-a to WCL §26-a. The new subdivision provides that in the event the Board is unable to identify the responsible insurance carrier for an employer within ten days of filing of a new claim, it shall “appoint” the UEF as the insurance carrier “until such time as the responsible insurance carrier is determined.” At the time she signed the bill, the Governor announced that she had reached an agreement with the legislature to amend the bill to allow thirty days from claim filing for appointment of the UEF as carrier. The amendment further provides that “Upon such appointment, the UEF shall immediately commence payments and provide medical care…” (emphasis added). It remains to be seen just how immediate the UEF’s payments will be. Arguably, this legislation denies the UEF the opportunity to controvert a claim on basic ANCR issues. The amendment takes effect sixty days after signing (February 20, 2022) and applies only to claims filed on and after that date.

The bill most applauded by attorneys, signed on 12/22/21, takes away the Board’s power to deny applications for Board review and Rebuttals to same based on technical defects in the RB–89 and RB–89.1 cover sheets. The bill adds a new Sec. 23-a to the WCL which provides that notwithstanding Board Rule 300.13(b) and Board Subject Nos. “a mistake, omission, defect and/or other irregularity in a coversheet accompanying” an Application for Board Review, Application for Full Board Review, or Rebuttal shall not be grounds for denial of such Application or Rebuttal. The Board is to “permit any such mistake, omission, defect and/or irregularity to be corrected within twenty days of written notice by the board” of same, or "if a substantial right of either the party filing the application or party filing the rebuttal is not prejudiced, such mistake, omission, defect and/or irregularity shall be disregarded.”
WCL §23-a takes effect immediately but does not apply to previously denied Applications or Rebuttals.

Other bills signed near the end of 2021 include S.1022-A, which added a new WCL §17-a to the statute, requiring the Board to translate all documents and forms used by or issued to injured employees in the 10 most common non-English languages spoken in New York State. The new law also requires the Board to provide interpretation services to injured employees and to publish a "language access plan" as well as a point a "language access coordinator." The new law is effective 3/22/22.

Finally, in October 2021, the Governor signed the "Nigro Act" named for Anthony Nigro, a bus mechanic who died in 2012 of lung cancer from exposure to diesel exhaust. This law creates a new WCL §16-a that provides a one time, one year opportunity to file a death benefit claim for any cancer due to exposure to diesel exhaust that otherwise would be disallowed by the timely claim filing or timely notice defenses. The one-year window begins on 10/29/21 and ends on 10/28/22.

Please contact our partner Ron Weiss with any questions about the above legislation.

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