Ask PIA

Employer’s recordkeeping and reporting duties

Can you explain Section 110 of the New York Workers’ Compensation Law, which lets employers pay directly for first-aid costs? When must a report be filed in writing?

Nonrenewal notice

Can a company nonrenew a voluntary-market workers’ compensation policy because of a history of slow payment by the insured?

NYSIF short-rate penalty

How can an employer avoid a short-rate penalty when replacing a New York State Insurance Fund policy at renewal?

Elimination of anniversary rating date on workers’ compensation policies

PIANY informed us of the elimination of the anniversary rating date for workers’ compensation policies in New York. I’m not really sure how this is going to impact my clients when it goes into effect. Can you explain it in more detail?

Rating procedure—assessments

At what stage in the development of the workers’ compensation premium is the New York state assessment percentage applied to determine the policy charge?

Rating procedure—minimum premium

In rating a workers’ compensation policy subject to minimum premium, is the expense constant added to the minimum premium?

Prior owners’ experience applies

Recently, we have had two workers’ compensation clients affected by poor experience modifications resulting from the experience of previous owners of their businesses. This does not seem fair. Is the company within its rights to carry over the previous owner’s poor claims history and charge the new owner higher rates?

Partners, executive officers

We insure a wholesale store with only two employees who are the owners of the business. Their accountant said they don’t need to carry a workers’ compensation policy, since they both are owners. Is this true?

Voluntary supplement won’t cut worker’s benefits

One of my clients is an employer, a key employee of whom has sustained an on-the-job injury. The employee will be disabled for a number of months, and the employer has filed a workers’ compensation claim.

The insurance company has agreed to pay the injured worker the maximum disability benefit per week until he can return to work. The employer would like to pay the worker the difference between the workers’ compensation disability benefit and his regular salary.

If the employer pays the difference, will this act in any way reduce the worker’s disability benefit?

Uninsured subcontractor—NYSIF premium

Our general contractor client hired a sole-proprietor subcontractor who works alone without employees. He has not elected to carry workers’ compensation on himself. How can we keep our client from having to pay a workers’ compensation premium for the subcontractor in the New York State Insurance Fund?

Disability for leased employees

In an employee-leasing arrangement, is New York’s statutory disability coverage the responsibility of the leasing company, the business that leases the employees or both?

Landowner’s liability for uninsured contractors

We’re concerned about a possible exposure for a municipality we insure. The municipality leases land to a firm that runs an airport. Recently, we learned that the airport’s workers’ compensation policy was canceled for nonpayment. If an airport worker is injured at this point, can the municipality be held responsible?

’Voluntary’ workers’ compensation: not for volunteers

Our insured is a fundraising organization that runs a Meals On Wheels program. Occasionally, volunteers help them out. Are the volunteers covered under the insured’s workers’ compensation policy? If not, is there an endorsement that could provide coverage?

Self-insured programs—employers’ liability

We are helping a hospital set up its workers’ compensation self-insurance program. Our concern is with employers’ liability, since there is no limit to employers’ liability under New York law; yet, in purchasing workers’ compensation excess policies, we find that there are no unlimited coverage policies available. What approach should we take to put safeguards in place?

Foreign exposures

For clients who have employees traveling outside of the U.S., at what point does coverage cease (i.e., Canada, Mexico, Israel or England)? Is there a solution? Some companies will not provide international coverage. Would I find this answer in the workers’ compensation manual or actual state law?

Stopgap insurance

Could you explain “stopgap” insurance? How is it provided?

Workers’ compensation—Florida domestic employees

We’re not sure where to turn to obtain workers’ compensation for a domestic employee who will be coming into our clients’ Florida home to care for the husband. Their homeowners carrier says we have to go through the Florida state plan. The state plan says it will provide coverage only if there are four or more employees. What should we do?

Bogus workers' compensation plans

One of my commercial insureds has entered into an unconventional arrangement that purports to provide workers' compensation insurance. Its rates are much lower than the insured's classification would warrant. Is this legal?

Workers’ compensation nonpayment cancellations

What is the time frame for canceling a workers’ compensation policy for nonpayment? Does this apply to both private carriers and the State Insurance Fund?

Recalculation of prior mods

We insure a contractor whose employee went to another contractor’s worksite and fell into a hole. The employee is collecting workers’ compensation under our client’s policy but also is suing the negligent party. If our workers’ compensation carrier can subrogate against the negligent party, will our client receive any refunds to make up for the increased modification this loss caused?

Covering workers’ compensation exposures in the Virgin Islands

We need to cover a possible workers’ compensation exposure in St. Thomas, Virgin Islands. Does St. Thomas require workers’ compensation and how can I provide it?

Temporary work in Canada

Our client will be doing well drilling in Ontario, Canada. How do I cover the workers’ compensation exposure?

Caddies defined

How do we handle caddies for purposes of workers’ compensation? The caddies are compensated by the players they caddy for.

Audit time frames

According to the company, the wrong rates were used to rate workers’ compensation coverage for a construction business back in 2018-2019. In 2021, after a third audit, the company discovered the rate discrepancy. They are just now suing the business for the difference. Can they do this?

DBL rules on LLCs

What is the correct way to treat the partners of limited liability companies for purposes of New York’s statutory disability coverage?

Credit for drug-free workplace

Can a carrier grant a credit on a New York state workers’ compensation premium for a drug-free workplace?

Time limit for WC uninsured penalty

Can an employer be charged with failure to maintain workers’ compensation coverage back in 2014-15? What evidence will the Workers’ Compensation Board accept to prove coverage was in effect?

Workers’ compensation, disability for family business

We insure a sole proprietorship. The owner’s wife works there. She is not an officer. Can she be excluded for workers’ compensation and disability, or must she be included?

Employee vs. independent contractor—insurance agents/brokers

When did insurance agents and brokers get the right to be treated as independent contractors?

Contingent liability for uninsured subcontractors

A subcontractor’s employee is injured on the job and it is discovered that the subcontractor’s policy is not in force. The general contractor’s policy pays the subcontractor’s employee the workers’ compensation benefits. Can the employee of the subcontractor sue the general contractor for negligence and collect, or is he barred by statute because the general contractor now becomes the employer?

Employee vs. independent contractor—principals excluded

If a sole proprietor or partner does not elect coverage on their workers’ compensation policy, could they collect from the policy of the contractor who hired them in the event of an injury?

Employee vs. independent contractor—contract

Is it possible for the employer and the worker to establish an independent contractor relationship by contract?

Insuring independent contractors

Is an independent contractor with no employees required to have workers’ compensation insurance when hired by another entity? Must the uninsured independent contractor’s payroll be charged on the hiring entity’s policy?

An employee’s right to sue under voluntary workers’ compensation coverage

If an employee is not subject to the Workers’ Compensation Law and the employer chooses to voluntarily cover the employee for workers’ compensation benefits, does the employee retain the right to sue his employer?

Additional insured’s obligation on reporting claims

What are the additional insured’s obligations with respect to reporting a claim to the carrier? If the carrier for the workers’ compensation policy and the commercial general liability policy are the same, does notice on the workers’ compensation policy constitute notice on the general liability policy. In the event the carrier denies coverage (or defense) to the additional insured for late reporting, will the contractual coverage step in?

Unsafe workplace

Can an employee sue an employer for an unsafe workplace?

Florida traveling salesperson

Our insured is opening a Florida sales office. The salesperson will be based in Florida but traveling 50% of the time. Do you know if a Florida Joint Underwriting Association Workers’ Compensation Policy would cover the salesperson while traveling?

Employment status

An employee was directed by his employer to pick up the employer’s mail on the way to work. On this trip, the employee had an auto accident. Is this employee’s injury covered under the New York Workers’ Compensation Law?

Workers’ compensation employee waivers

Insured has an independent contractor who does part-time clerical work for him at his office. She also works for some five to 10 other people at any given time and with exception of the insured and one other employer picks up paperwork and takes it to her home for processing. She is paid a flat hourly rate and determines her own hours as to time and number. The accountants for everyone in this group of employers agree she is subject to a 1099 and meets the federal 21 questions as an independent contractor. It appears the New York Workers’ Compensation Board holds this individual as an employee for their purposes because she uses his premises. I was advised that there is a disclaimer form available where she can opt out of coverage. I have been through the manual and all the endorsements and am unable to find such a form. Can you advise where it can be found?

Religious institutions

Is workers’ compensation required for clergy or employees of the church (i.e., secretary, organist, etc.)? If not, what happens when one of these employees gets hurt on the job at the church?

Requiring employee contributions for workers’ compensation premium

My retail carpet store client has a workers’ compensation policy. Besides his regular employees, he hires independent contractors (allegedly) to lay carpet that has been sold. His insurer includes in the premium basis the remuneration paid to these contractors unless proof of workers’ compensation coverage is obtained from them. If a contractor does not provide the required proof, my client requires the contractor to pay the premium attributable to his remuneration. Is this legal?

Separate entities under one policy

I have an insured who is interested in having three separate entities with three separate Federal Employer Identification Numbers employing individuals carrying workers’ compensation at one location. Does New York Workers’ Compensation Law allow me to list all entities under one policy or do I need three separate policies?

Class change upon audit

Can a carrier add a new class to a workers’ compensation policy upon audit?

Workers’ compensation fines

Can members of a limited liability company or officers of a corporation be held personally responsible for workers’ compensation fines when the employer has failed to comply with the insurance requirements?

Ensuring protection for leased employees

My client has leased employees from a labor contractor. The labor contractor has purchased the workers’ compensation policy for the leased employees. How can my client be certain the labor contractor is maintaining this protection?

Workers’ compensation—owner of timber land

Our insured owns a golf course, for which he maintains a workers’ compensation policy. When closed for the winter, he will be doing some logging on his property. He hired a one-person logging contractor who has no workers’ compensation policy. This individual will hire a subcontractor who also has no workers’ compensation policy. If one of these individuals gets hurt, who is responsible? Will the golf course get charged on their workers’ compensation audit? The insured will share the profit with the logger 70-30. The logger will pay the subcontractor. Can you help me out with these questions?

Workers’ compensation—LLC as named insured

Should the members of a limited liability company be listed as named insureds on a workers’ compensation policy?

Workers’ compensation—requirements for hiring a loss-control service

We recently learned that New York has a provision that requires all insureds with workers’ compensation mods over 1.2 to hire a loss-control service. Is this true?

Treatment of LLC members under the Workers’ Compensation Law

My client is a limited liability company with one member. A workers’ compensation policy was purchased to cover a worker employed by the LLC. However, the policy was not intended to cover the member, and so coverage was not elected. Later in the policy term, the worker left employment and was not replaced. When the policy was audited, the insurer charged premium for the member beginning with the time the worker’s employment ceased, subject to the minimum and maximum remuneration for a member. How can the insurer suddenly charge premium for the member when coverage has never been elected?

Form 154 requirements for out-of-state businesses when operating in Massachusetts

What workers’ compensation insurance requirement applies to a business domiciled in another state, but operating in Massachusetts?

WC disability benefit for concurrent employment

My client’s employee was injured while working a second job and will be unable to work for four months. Will his disability benefit include the wages from both jobs? Which employer is responsible for paying the benefit?

Three-day vacation nanny

My clients are going to hire a nanny to travel with them and care for their children while on vacation for three days. This is a one-time hire of this nanny. Does my client need a standard workers’ compensation policy for this employment?

Certificate law and WC insurance

Does Insurance Law (Article 5) governing certificates apply to workers’ compensation policies? If so, does the New York State Insurance Fund have to file its certificate form?

NYSIF surcharge differentials

Why do policies written in the New York State Insurance Fund have rate modifications that private insurers do not have?

Occupational Safety and Health Administration—COVID-19  

Are COVID-19 illnesses recordable to OSHA?