S. 6260(Libous)/A. 9153(Peralta)

Black Car Operators' Injury Fund

Summary: The bill clarifies existing law that workers' compensation benefits secured by

the New York Black Car Operators' Injury Compensation Fund, Inc. (the "Fund") pursuant to Executive Law Article 6-F is designed to only cover "black car" operators whose injuries arose out of and in the course of providing covered services while on a dispatch from a central dispatch facility. Specifics include:

Effective Date: Immediately.

Last Action: Vetoed by the Governor on September 25, 2008 (Veto Memo #160).

VETO MESSAGE - No. 160

This bill addresses the scope  of workers' compensation coverage provided to drivers of black cars through the New York Black Car Operators' Injury Compensation Fund, Inc. (the "Fund"). Under present law, the Fund acts as the employer of such drivers solely for purposes of workers' compensation coverage, provided the driver is engaged in "covered services" at the time he or she is injured.

Current law (as set forth in particular in the Appellate Division's Aminov decision) has allowed drivers to obtain workers' compensation coverage when they are driving and "logged into" the dispatch system. Supporters of the bill contend that this standard provides little guidance now that many drivers use other forms of remote communication devices to receive dispatches. Further, the present construction could

be read to allow for coverage when, for example, drivers use their cars (which they own privately) to do personal errands. For that reason, the sponsors would limit workers' compensation coverage to actions in the course of picking up, transporting or discharging a passenger or item at the direction of a central dispatch facility, or as otherwise set by regulation of the Department of State "proposed" by the Fund's board of directors.

I appreciate the sponsors' desire to provide a clear line as to when workers' compensation benefits attach for black car drivers. I note, though, that while one may argue that present law casts too broad a net, under this bill coverage would be too narrow. For example, if this legislation were enacted, a driver injured while in his or her car, with no other purpose but to await the next dispatch, will not be entitled to workers' compensation benefits. While there is no easy way to determine a driver's purpose in any particular circumstance, I believe the remedial goals of the workers' compensation system require some erring on the side of providing coverage.

Further, I am deeply concerned about the practical impact of this bill. In essence, it would transfer claims from a stable Fund that can fully pass on all its costs to its customers, to a no-fault system where a very limited number of carriers covers the risks at issue. The upshot would be to lessen drivers' coverage and increase no-fault rates. While I respect the concerns raised by the sponsors of the impact of the Aminov decision on the Fund, I note that the decision was issued nearly five years ago, and the black car industry has been able to function under its standards since then.

Finally, limiting the Department of State's ability to issue regulations to those drafted at the behest of the Fund would grant veto power over state regulation to an entity controlled by the trade association of the regulated industry. I believe it would be both unprecedented and unwise to grant such regulatory authority to a party with a clear financial stake in the resulting regulations. I also believe that regulations governing the degree of coverage to be provided by the Fund should properly fall within the purview of the Workers' Compensation Board.

The bill is disapproved. (signed) DAVID A. PATERSON