N.Y. Comp. Codes R. & Regs. tit. 12 § 309.3

Current through Register Vol. 46, No. 25, June 18, 2024

Section 309.3 - Livery drivers

(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.

(b) A livery driver that is not an independent livery driver is not entitled to any benefits from the fund but is deemed an employee of the livery base with which he or she is affiliated and workers' compensation benefits shall be paid for any death or injury arising out of and in the course of employment as provided by the Workers' Compensation Law.

N.Y. Comp. Codes R. & Regs. Tit. 12 § 309.3

Amended New York State Register March 23, 2022/Volume XLIV, Issue 12, eff. 3/23/2022