Workers Compensation — Disability Benefits — Definitions

  • Date:

Current through 2016 New York Laws, Chapters 1 to 237

As used in this article:

1. "Board" means the workmen's compensation board created under this chapter.
2. "Chairman" means the chairman of the workmen's compensation board of the state of New York.
3. "State fund" means the state insurance fund created under article six of this chapter.
4. "Employer," except when otherwise expressly stated, means a person, partnership, association, corporation, legal representative of a deceased employer, or the receiver or trustee of a person, partnership, association or corporation, who has persons in employment as defined in subdivision six of this section, but does not include the state, a municipal corporation, local governmental agency, other political subdivisions or public authority.
5. "Employee" means a person engaged in the service of an employer in any employment defined in subdivision six of this section, except a minor child of the employer, except a duly ordained, commissioned, or licensed minister, priest or rabbi, a sexton, a christian science reader, or member of a religious order, or an executive officer of a corporation who at all times during the period involved owns all of the issued and outstanding stock of the corporation and holds all of the offices pursuant to paragraph (e) of section seven hundred fifteen of the business corporation law or two executive officers of a corporation who at all times during the period involved between them own all of the issued and outstanding stock of such corporation and hold all such offices provided, however, that each officer must own at least one share of stock, except as provided in section two hundred twelve of this article, or an executive officer of an incorporated religious, charitable or educational institution, or persons engaged in a professional or teaching capacity in or for a religious, charitable or educational institution, or volunteers in or for a religious, charitable or educational institution, or persons participating in and receiving rehabilitative services in a sheltered workshop operated by a religious, charitable or educational institution under a certificate issued by the United States department of labor, or recipients of charitable aid from a religious or charitable institution who perform work in or for the institution which is incidental to or in return for the aid conferred, and not under an express contract of hire. The terms "religious, charitable or educational institution" mean a corporation, unincorporated association, community chest, fund or foundation organized and operated exclusively for religious, charitable or educational purposes, no part of the net earnings of which inure to the benefit of any private shareholder or individual.

"Employee" shall also mean, for purposes of this chapter, a professional musician or a person otherwise engaged in the performing arts who performs services as such for a television or radio station or network, a film production, a theatre, hotel, restaurant, night club or similar establishment unless, by written contract, such musician or person is stipulated to be an employee of another employer covered by this chapter. "Engaged in the performing arts" shall mean performing service in connection with the production of or performance in any artistic endeavor which requires artistic or technical skill or expertise.

"Employee" shall also mean, for purposes of this chapter, a professional model, who:

(a) performs modeling services for; or
(b) consents in writing to the transfer of his or her exclusive legal right to the use of his or her name, portrait, picture or image, for advertising purposes or for the purposes of trade, directly to a retail store, a manufacturer, an advertising agency, a photographer, a publishing company or any other such person or entity, which dictates such professional model's assignments, hours of work or performance locations and which compensates such professional model in return for a waiver of such professional model's privacy rights enumerated above, unless such services are performed pursuant to a written contract wherein it is stated that such professional model is the employee of another employer covered by this chapter. For the purposes of this paragraph, the term "professional model" means a person who, in the course of his or her trade, occupation or profession, performs modeling services. For purposes of this paragraph, the term "modeling services" means the appearance by a professional model in photographic sessions or the engagement of such model in live, filmed or taped modeling performances for remuneration.
6. "Employment."
A. "Employment" means employment in any trade, business or occupation carried on by an employer, except that the following shall not be deemed employment under this article: services performed for the state, a municipal corporation, local governmental agency, other political subdivision or public authority; employment subject to the federal railroad unemployment insurance act; service performed on or as an officer or member of the crew of a vessel on the navigable water of the United States or outside the United States; service as farm laborers; casual employment and the first forty-five days of extra employment of employees not regularly in employment as otherwise defined herein; service as golf caddies; and service during all or any part of the school year or regular vacation periods as a part-time worker of any person actually in regular attendance during the day time as a student in an elementary or secondary school. The term "employment" shall include domestic or personal work in a private home. The term "employment" shall not include the services of a licensed real estate broker or sales associate if it be proven that (a) substantially all of the remuneration (whether or not paid in cash) for the services performed by such broker or sales associate is directly related to sales or other output (including the performance of services) rather than to the number of hours worked; (b) the services performed by the broker or sales associate are performed pursuant to a written contract executed between such broker or sales associate and the person for whom the services are performed within the past twelve to fifteen months; and (c) the written contract provided for in subparagraph (b) of this paragraph was not executed under duress and contains the following provisions:
(i) that the broker or sales associate is engaged as an independent contractor associated with the person for whom services are performed pursuant to article twelve-A of the real property law and shall be treated as such for all purposes, including but not limited to federal and state taxation, withholding, unemployment insurance and workers' compensation;
(ii) that the broker or sales associate (1) shall be paid a commission on his or her gross sales, if any, without deduction for taxes, which commission shall be directly related to sales or other output; (2) shall not receive any remuneration related to the number of hours worked; and (3) shall not be treated as an employee with respect to such services for federal and state tax purposes;
(iii) that the broker or sales associate shall be permitted to work any hours he or she chooses;
(iv) that the broker or sales associate shall be permitted to work out of his or her own home or the office of the person for whom services are performed;
(v) that the broker or sales associate shall be free to engage in outside employment;
(vi) that the person for whom the services are performed may provide office facilities and supplies for the use of the broker or sales associate, but the broker or sales associate shall otherwise bear his or her own expenses, including but not limited to automobile, travel, and entertainment expenses;
(vii) that the person for whom the services are performed and the broker or sales associate shall comply with the requirements of article twelve-A of the real property law and the regulations pertaining thereto, but such compliance shall not affect the broker or sales associate's status as an independent contractor nor should it be construed as an indication that the broker or sales associate is an employee of the person for whom the services are performed for any purpose whatsoever;
(viii) that the contract and the association created thereby may be terminated by either party thereto at any time upon notice given to the other.

"Employment" shall not include, for the purposes of this chapter, the services of a licensed insurance agent or broker if it be proven that (a) substantially all of the remuneration (whether or not paid in cash) for the services performed by such agent or broker is directly related to sales or other output (including the performance of services) rather than to the number of hours worked; (b) such agent is not a life insurance agent receiving a training allowance subsidy described in paragraph three of subsection (e) of section four thousand two hundred twenty-eight of the insurance law; (c) the services performed by the agent or broker are performed pursuant to a written contract executed between such agent or broker and the person for whom the services are performed; and (d) the written contract provided for in clause (c) of this paragraph was not executed under duress and contains the following provisions:

(i) that the agent or broker is engaged as an independent contractor associated with the person for whom services are performed pursuant to article twenty-one of the insurance law and shall be treated as such for all purposes, including but not limited to federal and state taxation, withholding (other than federal insurance contributions act (FICA) taxes required for full time life insurance agents pursuant to section 3121(d)(3) of the federal internal revenue code), unemployment insurance and workers' compensation;
(ii) that the agent or broker (1) shall be paid a commission on his or her gross sales, if any, without deduction for taxes (other than federal insurance contributions act (FICA) taxes required for full time life insurance agents pursuant to section 3121(d)(3) of the federal internal revenue code), which commission shall be directly related to sales or other output; (2) shall not receive any remuneration related to the number of hours worked; and (3) shall not be treated as an employee with respect to such services for federal and state tax purposes (other than federal insurance contributions act (FICA) taxes required for full time life insurance agents pursuant to section 3121(d)(3) of the federal internal revenue code);
(iii) that the agent or broker shall be permitted to work any hours he or she chooses;
(iv) that the agent or broker shall be permitted to work out of his or her own office or home or the office of the person for whom services are performed;
(v) that the person for whom the services are performed may provide office facilities, clerical support, and supplies for the use of the agent or broker, but the agent or broker shall otherwise bear his or her own expenses, including but not limited to automobile, travel, and entertainment expenses;
(vi) that the person for whom the services are performed and the agent or broker shall comply with the requirements of article twenty-one of the insurance law and the regulations pertaining thereto, but such compliance shall not affect the agent's or broker's status as an independent contractor nor should it be construed as an indication that the agent or broker is an employee of the person for whom the services are performed for any purpose whatsoever;
(vii) that the contract and the association created thereby may be terminated by either party thereto at any time with notice given to the other.
B. The term "employment" includes an employee's entire service performed within or both within and without this state if the service is localized in this state. Service is deemed localized within the state if it is performed entirely within the state or is performed both within and without the state but that performed without the state is incidental to the employee's service within the state or is temporary or transitory in nature or consists of isolated transactions.
C. The term "employment" includes an employee's entire service performed both within and without this state provided it is not localized in any state but some of the service is performed in this state, and
(1) the employee's base of operations is in this state; or
(2) if there is no base of operations in any state in which some part of the service is performed, the place from which such service is directed or controlled is in this state; or
(3) if the base of operations or place from which such service is directed or controlled is not in any state in which some part of the service is performed, the employee's residence is in this state.
D. "Employment" shall not include the services of a media sales representative if it be proven that (A) substantially all of the compensation for the services performed by such media sales representative is directly related to sales or other productivity rather than to the number of hours worked; (B) the media sales representative must be incorporated under the laws of this state in order to be considered an independent contractor and shall be solely responsible for the payment of workers' compensation premiums; (C) the services performed by the media sales representative are performed pursuant to a written contract executed between such media sales representative and the person for whom the services are performed; and (D) the written contract provided for in subparagraph (C) of this paragraph was not executed under duress and contains the following provisions:
(i) that the media sales representative is engaged as an independent contractor associated with the person for whom services are performed and shall be treated as such for all purposes, including but not limited to federal and state taxation, withholdings, and workers' compensation;
(ii) that the media sales representative (1) shall be paid a commission based on a fixed fee rate outlined in the written contract, if any, without deduction for taxes, which commission shall be directly related to sales pursuant to price guidelines or other productivity within the sales area; (2) shall not receive any compensation related to the number of hours worked; and (3) shall not be treated as an employee with respect to such services for federal and state tax purposes;
(iii) that the media sales representative shall be permitted to work any hours he or she chooses subject to the restrictions in section three hundred ninety-nine-p of the general business law;
(iv) that the media sales representative may work at any site other than on the premises of the person for whom services are performed;
(v) that the person for whom the services are performed shall not be responsible for any reimbursement expenses other than those outlined in the written contract;
(vi) that the person for whom the services are performed and the media sales representative shall comply with all articles of the labor law that apply to such work other than article eighteen of the labor law, but such compliance shall not affect the media sales representative's status as an independent contractor nor should it be construed as an indication that the media sales representative is an employee of the person for whom the services are performed for any purpose whatsoever;
(vii) that the contract and the association created thereby may be terminated by the media sales representative thereto at any time with two weeks notice given to the person for whom the services are performed.

For the purposes of this paragraph, "media sales representative" shall include any contractor engaged in the sale or renewal of magazine subscriptions or the sale or renewal of magazine advertising space who (i) receives no direction or control on the methods by which they perform services other than training on product characteristics, (ii) are solely in control of their work schedule, and (iii) may refuse any work assignment.

7. "Termination of employment". Employment with a covered employer terminates on the last day on which an employee performs work in the service of such employer; provided, however, that employment shall not terminate on such day if the employee by agreement with the employer, then commences, for a specified period, a leave of absence with pay or vacation with pay, at the conclusion of which the employee will return to work with the same employer. If notwithstanding such agreement the employee does not so return, his employment shall be deemed to have terminated on the last day of the period of such paid leave of absence or such paid vacation.
8. "Injury" and "sickness" mean accidental injury, disease, infection or illness or incapacitation as a result of being an organ donor in a transplant operation.
9.
A. "Disability" during employment means the inability of an employee, as a result of injury or sickness not arising out of and in the course of an employment, to perform the regular duties of his employment or the duties of any other employment which his employer may offer him at his regular wages and which his injury or sickness does not prevent him from performing. "Disability" during unemployment means the inability of an employee, as a result of injury or sickness not arising out of and in the course of an employment, to perform the duties of any employment for which he is reasonably qualified by training and experience.
B. "Disability" also includes disability caused by or in connection with a pregnancy.
10. "Benefits" means the money allowances during disability payable to an employee who is eligible to receive such benefits, as provided in this article.
11. "Carrier" shall include: the state fund, stock corporations, mutual corporations and reciprocal insurers which insure the payment of benefits provided pursuant to this article; and employers and associations of employers or of employees and trustees authorized or permitted to pay benefits under the provisions of this article. For purposes of this chapter, a nonprofit property/casualty insurance company which is licensed pursuant to subsection (b) of section six thousand seven hundred four of the insurance law shall be deemed a stock corporation and a nonprofit property/casualty insurance company which is licensed as a reciprocal insurer pursuant to subsection (c) of section six thousand seven hundred four of the insurance law shall be deemed a reciprocal insurer.
12. "Wages" means the money rate at which employment with a covered employer is recompensed under the contract of hiring with the covered employer and shall include the reasonable value of board, rent, housing, lodging, or similar advantage received under the contract of hiring.
13. "Average weekly wage." For the purpose of computing the amount of disability benefits of an employee during any period of disability, "average weekly wage" shall be the amount determined by dividing either the total wages of such employee in the employment of his last covered employer for the eight weeks or portion thereof that the employee was in such employment immediately preceding and including his last day worked prior to commencement of such disability, or the total wages of the last eight weeks or portion thereof immediately preceding and excluding the week in which the disability began, whichever is the higher amount, by the number of weeks or portion thereof of such employment. The chairman may by regulation prescribe reasonable procedures to determine average weekly wage, including procedures in lieu of the foregoing for determination of the average weekly wage of a class or classes of employees, and may authorize reasonable deviations to facilitate administration in the determination of average weekly wage of a class or classes of the employees of a covered employer.

In the event the employee was not in the employment of his last covered employer during all of such eight weeks and if the above determination results in an average weekly wage which does not fairly represent the normal earnings of such employee in all employments with covered employers during such eight weeks, there may be a redetermination of average weekly wage to reflect wages received from all covered employers during such eight week period. The chairman may by regulation prescribe reasonable procedures for such redetermination.

14. "A day of disability" means any day on which the employee was prevented from performing work because of disability, including any day which the employee uses for family leave, and for which the employee has not received his or her regular remuneration.
15. "Family leave" shall mean any leave taken by an employee from work:
(a) to participate in providing care, including physical or psychological care, for a family member of the employee made necessary by a serious health condition of the family member; or
(b) to bond with the employee's child during the first twelve months after the child's birth, or the first twelve months after the placement of the child for adoption or foster care with the employee; or
(c) because of any qualifying exigency as interpreted under the family and medical leave act, 29 U.S.C.S § 2612(a)(1)(e) and 29 C.F.R. S.825.126(a)(1)-(8), arising out of the fact that the spouse, domestic partner, child, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the armed forces of the United States.
16. "Child" means a biological, adopted, or foster son or daughter, a stepson or stepdaughter, a legal ward, a son or daughter of a domestic partner, or the person to whom the employee stands in loco parentis.
17. "Domestic partner" has the same meaning as set forth in section four of this chapter.
18. "Serious health condition" means an illness, injury, impairment, or physical or mental condition that involves inpatient care in a hospital, hospice, or residential health care facility, continuing treatment or continuing supervision by a health care provider. Continuing supervision by a health care provider includes a period of incapacity which is permanent or long term due to a condition for which treatment may not be effective where the family member is under the continuing supervision of, but need not be receiving active treatment by, a health care provider.
19. "Parent" means a biological, foster, or adoptive parent, a parent-in-law, a stepparent, a legal guardian, or other person who stood in loco parentis to the employee when the employee was a child.
20. "Family member" means a child, parent, grandparent, grandchild, spouse, or domestic partner as defined in this section.
21. "Grandchild" means a child of the employee's child.
22. "Health care provider" shall mean for the purpose of family leave, a person licensed under article one hundred thirty-one, one hundred thirty-one-B, one hundred thirty-two, one hundred thirty-three, one hundred thirty-six, one hundred thirty-nine, one hundred forty-one, one hundred forty-three, one hundred forty-four, one hundred fifty-three, one hundred fifty-four, one hundred fifty-six or one hundred fifty-nine of the education law or a person licensed under the public health law, article one hundred forty of the education law or article one hundred sixty-three of the education law.
23. "Grandparent" means a parent of the employee's parent.
N.Y. Work. Comp. Law § 201
Amended by New York Laws 2016, ch. 54,Sec. SS-2, eff. 4/1/2016.
SECTIONS