2013 New York Consolidated Laws
WKC - Workers' Compensation
Article 9 - (200 - 242) DISABILITY BENEFITS
201 - Definitions.

 
    § 201. Definitions. 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 and  for  which  he
  has not received his regular remuneration.