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:

• Executive Law § 160-cc(4) is amended to clarify that “covered services” occur only when a black car operator is on a dispatch from a central dispatch facility.
• A new Executive Law § 160-cc(6) is added to define the term “dispatch.”
• Subdivision 3 of Workers’ Compensation Law § 2 is amended to clarify that the Fund is the “employer” of a black car operator only while the car operator is providing covered services.
• Subdivision 4 of Workers’ Compensation Law § 2 is amended to clarify that a black car operator is an “employee” of the Fund only while the car operator is providing covered services.
• Subdivision 5 of Workers’ Compensation Law § 2 is amended to clarify that a black car operator is in the “employment” of the Fund only while the car operator is providing covered services.
• Workers’ Compensation Law § 11 is amended to clarify that liability is limited to securing the payment of workers’ compensation in accordance with Article 6-F of the Executive Law to a black car operator providing covered services, as defined in Article 6-F, whose injury arose out of and in the course of providing only covered services.

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