New York Codes, Rules and Regulations › Title 12 - DEPARTMENT OF LABOR › Chapter V - Workers' Compensation › Subchapter A - General Provisions › Part 309 - Independent Livery Driver Benefit Fund › Section 309.3 - Livery drivers

Current through Register Vol. 46, No. 28, July 10, 2024
(a) Independent
				  livery drivers.
(1) A livery driver is an
				  independent livery driver when he or she is licensed to drive a livery by the
				  appropriate governing taxi and limousine commission and is dispatched by an
				  independent livery base with which he or she is affiliated. An independent
				  livery driver also includes a person who is operating a vehicle that is
				  affiliated with a member of the Black Car Operators' Injury Compensation Fund
				  when that person is dispatched by an independent livery base.
(2) An independent livery driver that
				  sustains injury as a result of the use or operation of a livery during a
				  dispatch by an independent livery base shall be eligible to receive any
				  benefits for which such driver is eligible under Insurance Law article 51 and
				  shall not be entitled to workers' compensation benefits except as set forth in
				  Executive Law section 160-ddd and paragraph (3) of this subdivision.
(3) Workers' compensation benefits shall be
				  provided by the fund for independent livery drivers dispatched by independent
				  livery bases for deaths of such drivers arising out of and in the course of
				  providing covered services, and all injuries sustained by such drivers arising
				  out of and in the course of providing covered services either:
(i) resulting from a crime committed against
				  such livery driver as evidenced by a police report; or
(ii) resulting in the following conditions:
(a) amputation or physical loss of an arm,
				  leg, hand, foot, multiple fingers, index finger, multiple toes, ear or
				  nose;
(b) paraplegia or
				  quadriplegia; or
(c) total and
				  permanent blindness or deafness.
(4) Workers' compensation benefits shall not
				  be provided by the fund if the independent livery driver was not performing
				  covered services or was in violation of the rules and regulations of the
				  governing taxi and limousine commission regarding the solicitation or picking
				  up of passengers at the time the crime was committed against him or her or when
				  his or her death or injury occurred.
(5) All claims of independent livery drivers
				  for workers' compensation benefits as provided in Executive Law, section
				  160-d dd and paragraph (3) of this
				  subdivision must be filed in this State with the board, regardless of the
				  location of the incident.
(6) An
				  independent livery driver that may be entitled to workers' compensation
				  benefits as provided in Executive Law, section
				  160-d dd and paragraph (3) of this
				  subdivision, or someone on his or her behalf, must provide written notice to
				  the fund in accordance with Workers' Compensation Law, section 18.
(7) Presumptive wages.
(i) Independent livery drivers are presumed
				  to receive annual wages of $13,000 for an average weekly wage of $250. An
				  independent livery driver or the fund may rebut the presumptive annual or
				  average weekly wage by submitting competent evidence to the board that the
				  independent livery driver's actual wages for covered services were different.
				  Competent evidence includes State or Federal income tax returns or financial or
				  business records of comparable probative value to income tax returns. State or
				  Federal income tax returns which should have been filed as of the date of the
				  injury or death but had not then been filed shall not be sufficient to overcome
				  the presumptive wage without other evidence. The board shall evaluate any other
				  evidence of earnings in light of its probative value and reliability.
(ii) For deaths and injuries occurring on or
				  after July 1, 2011, and on or after July 1st of each succeeding year, the
				  presumptive wage shall increase by the percentage increase in the New York
				  State average weekly wage between the year in which it is reported and the
				  previous year. If there is no increase in the New York State average weekly
				  wage in a particular year, then the presumptive wage shall remain
				  unchanged.