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Legislative Memo

Lev Ginsburg
Director of Government Affairs
T 518.465.7511
www.bcnys.org

BILL:

S.2768 (Savino) / A.5561 (Titus)

Support

SUBJECT:

Return to Work Guidelines

 

DATE:

May 16, 2016

 

The Business Council strongly opposes this legislation, which would mandate awards in cases former employees with partial disabilities who have voluntarily withdrawn from the labor market and simply enrolled in one of the Department of Labor's reemployment services, One-Stop Career Centers, retraining programs, rehabilitation program by VESID or other board approved rehabilitation programs, job services or for full time attendance in an educational institution. The bill in effect eliminates long-standing legal precedent that recognizes that the issue of wage-loss is case-specific and should be a factual determination by the Board. This removal of fact-based discretion will raise comp system costs and create a new avenue for those who have voluntarily left employment and not returned to work but may now reopen cases and collect payments.

The bill is an attempt to undo the holding of the Court of Appeals in the Matter of Zamora v. New York Neurologic. Zamora, consistent with longstanding case law, rejected the claim that a permanent partially disabled claimant is entitled to a presumption of causally related wage loss (meaning that the disability is not cause of wage loss). Under this decision and current law, the Board may make an inference of wage loss but not a presumption. The Court of Appeals recognized that there are important and relevant factual determinations to be made by the Board and that it may determine that there is no finding of wage loss at all, based on the circumstances of the case.

This bill would completely undermine an employer's defense in a wage-loss hearing and totally remove the Board's key role as a fact-finding authority by creating a presumption against any voluntary withdrawal defense. Additionally with automatic awards given in the event that a claimant participated, even nominally, in a variety of programs, would create a wave of new re-opened claims, and place significant new costs on an already over-burdened, employer-funded system.

This legislation would severely disrupt any attempt to control the costs of New York's comp system by undercutting Board discretion. It would ultimately result in serious program cost increases.

For these reasons The Business Council respectfully opposes the enactment of S.2768 (Savino) / A.5561 (Titus).