There is a newer version of the New York Consolidated Laws
2006 New York Code - Schedule In Case Of Disability.
§ 15. Schedule in case of disability. The following schedule of
compensation is hereby established:
1. Permanent total disability. In case of total disability adjudged to
be permanent sixty-six and two-thirds per centum of the average weekly
wages shall be paid to the employee during the continuance of such total
disability. Loss of both hands, or both arms, or both feet, or both
legs, or both eyes, or of any two thereof shall, in the absence of
conclusive proof to the contrary, constitute permanent total disability.
In all other cases permanent total disability shall be determined in
accordance with the facts. Notwithstanding any other provision of this
chapter, an injured employee disabled due to the loss or total loss of
use of both eyes, or both hands, or both arms, or both feet, or both
legs, or of any two thereof shall not suffer any diminution of his
compensation by engaging in business or employment provided his earnings
or wages, when combined with his compensation, shall not be in excess of
the wage base on which the maximum weekly compensation benefit is
computed under the law in effect at time of such earning; further
provided, that if the combination exceeds such wage base, the
compensation shall be diminished to an amount which, together with his
earnings or wages, shall equal the wage base; and further provided that
the application of this subdivision shall not result in reduction of
compensation which an injured employee who is disabled due to the loss
or total loss of use of both eyes, or both hands, or both arms, or both
feet, or both legs or of any two thereof, would otherwise be entitled to
under any other provision of this section.
2. Temporary total disability. In case of temporary total disability,
sixty-six and two-thirds per centum of the average weekly wages shall be
paid to the employee during the continuance thereof, except as otherwise
provided in this chapter.
3. Permanent partial disability. In case of disability partial in
character but permanent in quality the compensation shall be sixty-six
and two-thirds per centum of the average weekly wages and shall be paid
to the employee for the period named in this subdivision, as follows:
Number of
Member lost weeks' compensation
a. Arm ............................................................. 312
b. Leg ............................................................. 288
c. Hand ............................................................ 244
d. Foot ............................................................ 205
e. eye ............................................................. 160
f. Thumb ............................................................ 75
g. First finger ..................................................... 46
h. Great toe ........................................................ 38
i. Second finger .................................................... 30
j. Third finger ..................................................... 25
k. Toe other than great toe ......................................... 16
l. Fourth finger .................................................... 15
m. Loss of hearing. Compensation for the complete loss of the hearing
of one ear, for sixty weeks, for the loss of hearing of both ears, for
one hundred and fifty weeks.
n. Phalanges. Compensation for the loss of more than one phalange of a
digit shall be the same as for loss of the entire digit. Compensation
for loss of the first phalange shall be one-half of the compensation for
loss of the entire digit.
o. Amputated arm or leg. Compensation for an arm or a leg, if
amputated at or above the wrist or ankle, shall be for the proportionate
loss of the arm or leg.
p. Binocular vision or per centum of vision. Compensation for loss of
binocular vision or for eighty per centum or more of the vision of an
eye shall be the same as for loss of the eye.
q. Two or more digits. Compensation for loss or loss of use of two or
more digits, or one or more phalanges of two or more digits, of a hand
or foot may be proportioned to the loss of use of the hand or foot
occasioned thereby but shall not exceed the compensation for loss of a
hand or foot.
r. Total loss of use. Compensation for permanent total loss of use of
a member shall be the same as for loss of the member.
s. Partial loss or partial loss of use. Compensation for permanent
partial loss or loss of use of a member may be for proportionate loss or
loss of use of the member. Compensation for permanent partial loss or
loss of use of an eye shall be awarded on the basis of uncorrected loss
of vision or corrected loss of vision resulting from an injury whichever
is the greater.
t. Disfigurement. 1. The board may award proper and equitable
compensation for serious facial or head disfigurement, not to exceed
twenty thousand dollars, including a disfigurement continuous in length
which is partially in the facial area and also extends into the neck
region as described in paragraph two hereof.
2. The board, if in its opinion the earning capacity of an employee
has been or may in the future be impaired, may award compensation for
any serious disfigurement in the region above the sterno clavicular
articulations anterior to and including the region of the sterno cleido
mastoid muscles on either side, but no award under subdivisions one and
two shall, in the aggregate, exceed twenty thousand dollars.
3. Notwithstanding any other provision hereof, two or more serious
disfigurements, not continuous in length, resulting from the same
injury, if partially in the facial area and partially in the neck region
as described in paragraph two hereof, shall be deemed to be a facial
disfigurement.
u. Total or partial loss or loss of use of more than one member or
parts of members. In any case in which there shall be a loss or loss of
use of more than one member or parts of more than one member set forth
in paragraphs a to t, both inclusive, of this subdivision, but not
amounting to permanent total disability, the board shall award
compensation for the loss or loss of use of each such member or part
thereof, which awards shall run consecutively.
v. Additional compensation for impairment of wage earning capacity in
certain permanent partial disabilities. Notwithstanding any other
provision of this subdivision, additional compensation shall be payable
for impairment of wage earning capacity for any period after the
termination of an award under paragraphs a, b, c, or d, of this
subdivision for the loss or loss of use of fifty per centum or more of a
member, provided such impairment of earning capacity shall be due solely
thereto. Such additional compensation shall be determined in accordance
with paragraph w of this subdivision. The additional compensation shall
be reduced by fifty per centum of any amount of disability benefits
which the disabled employee is receiving or entitled to receive for the
same period under the social security act, and shall cease on the date
the disabled employee receives or is entitled to receive old-age
insurance benefits under the social security act. As soon as practicable
after the injury, the worker shall be required to participate in a board
approved rehabilitation program; or shall have demonstrated cooperation
with efforts to institute such a board approved program and shall have
been determined by the board not to be a feasible candidate for
rehabilitation; such rehabilitation shall constitute treatment and care
as provided in this chapter.
w. Other cases. In all other cases in this class of disability, the
compensation shall be sixty-six and two-thirds per centum of the
difference between his average weekly wages and his wage-earning
capacity thereafter in the same employment or otherwise, payable during
the continuance of such partial disability, but subject to
reconsideration of the degree of such impairment by the board on its own
motion or upon application of any party in interest.
4. Effect of award. An award made to a claimant under subdivision
three shall in case of death arising from causes other than the injury
be payable to and for the benefit of the persons following:
a. If there be a surviving spouse and no child of the deceased under
the age of eighteen years, to such spouse.
b. If there be a surviving spouse and surviving child or children of
the deceased under the age of eighteen years, one-half shall be payable
to the surviving spouse and the other half to the surviving child or
children.
The board may in its discretion require the appointment of a guardian
for the purpose of receiving the compensation of the minor child. In the
absence of such a requirement by the board the appointment for such a
purpose shall not be necessary.
c. If there be a surviving child or children of the deceased under the
age of eighteen years, but no surviving spouse then to such child or
children.
d. If there be no surviving spouse and no surviving child or children
of the deceased under the age of eighteen years, then to such dependent
or dependents as defined in section sixteen of this chapter, as directed
by the board; and if there be no such dependents, then to the estate of
such deceased in an amount not exceeding reasonable funeral expenses as
provided in subdivision one of section sixteen of this chapter, or, if
there be no estate, to the person or persons paying the funeral expenses
of such deceased in an amount not exceeding reasonable funeral expenses
as provided in subdivision one of section sixteen of this chapter.
An award for disability may be made after the death of the injured
employee.
4-a. Protracted temporary total disability in connection with
permanent partial disability. In case of temporary total disability and
permanent partial disability both resulting from the same injury, if the
temporary total disability continues for a longer period than the number
of weeks set forth in the following schedule, the period of temporary
total disability in excess of such number of weeks shall be added to the
compensation period provided in subdivision three of this section: Arm,
thirty-two weeks; leg, forty weeks; hand, thirty-two weeks; foot,
thirty-two weeks; ear, twenty-five weeks; eye, twenty weeks; thumb,
twenty-four weeks; first finger, eighteen weeks; great toe, twelve
weeks; second finger, twelve weeks; third finger, eight weeks; fourth
finger, eight weeks; toe other than great toe, eight weeks.
In any case resulting in loss or partial loss of use of arm, leg,
hand, foot, ear, eye, thumb, finger or toe, where the temporary total
disability does not extend beyond the periods above mentioned for such
injury, compensation shall be limited to the schedule contained in
subdivision three.
5. Temporary partial disability. In case of temporary partial
disability resulting in decrease of earning capacity, the compensation
shall be two-thirds of the difference between the injured employee's
average weekly wages before the accident and his wage earning capacity
after the accident in the same or other employment.
5-a. Determination of wage earning capacity. The wage earning capacity
of an injured employee in cases of partial disability shall be
determined by his actual earnings, provided, however, that if he has no
such actual earnings the board may in the interest of justice fix such
wage earning capacity as shall be reasonable, but not in excess of
seventy-five per centum of his former full time actual earnings, having
due regard to the nature of his injury and his physical impairment.
5-b. Non-schedule adjustments. Notwithstanding any other provision of
this chapter, in any case coming within the provisions of subdivisions
three or five of this section, in which the right to compensation has
been established and compensation has been paid for not less than three
months, in which the continuance of disability and of future earning
capacity cannot be ascertained with reasonable certainty, the board may,
in the interest of justice, approve a non-schedule adjustment agreed to
between the claimant and the employer or his insurance carrier. The
board shall require, before approving any such agreement, that there be
an examination of the claimant in accordance with section nineteen of
this chapter, and such approval shall only be given when it is found
that the adjustment is fair and in the best interest of the claimant.
The board may, in such case, order all future compensation to be paid in
one or more lump sums or periodically, and any such adjustment shall be
regarded as a closing of the claim unless the board find upon proof that
there has been a change in condition or in the degree of disability of
claimant not found in the medical evidence and, therefore, not
contemplated at the time of the adjustment.
6. Maximum and minimum compensation for disability. (a) Compensation
for permanent or temporary total disability due to an accident or
disablement resulting from an occupational disease that occurs, (1) on
or after January first, nineteen hundred seventy-eight, shall not exceed
one hundred twenty-five dollars per week, that occurs (2) on or after
July first, nineteen hundred seventy-eight, shall not exceed one hundred
eighty dollars per week, that occurs (3) on or after January first,
nineteen hundred seventy-nine, shall not exceed two hundred fifteen
dollars per week, that occurs (4) on or after July first, nineteen
hundred eighty-three, shall not exceed two hundred fifty-five dollars
per week, that occurs (5) on or after July first, nineteen hundred
eighty-four, shall not exceed two hundred seventy-five dollars per week,
that occurs (6) on or after July first, nineteen hundred eighty-five,
shall not exceed three hundred dollars per week, that occurs (7) on or
after July first, nineteen hundred ninety, shall not exceed three
hundred forty dollars per week; and in the case of temporary total
disability shall not be less than thirty dollars per week and in the
case of permanent total disability shall not be less than twenty dollars
per week except that if the employee's wages at the time of injury are
less than thirty or twenty dollars per week respectively, he or she
shall receive his or her full weekly wages. Compensation for permanent
or temporary partial disability due to an accident or disablement
resulting from an occupational disease that occurs (1) on or after
January first, nineteen hundred seventy-eight, shall not exceed one
hundred five dollars per week, that occurs (2) on or after July first,
nineteen hundred eighty-three, shall not exceed one hundred twenty-five
dollars per week, that occurs (3) on or after July first, nineteen
hundred eighty-four, shall not exceed one hundred thirty-five dollars
per week, that occurs (4) on or after July first, nineteen hundred
eighty-five, shall not exceed one hundred fifty dollars per week, that
occurs (5) on or after July first, nineteen hundred ninety, shall not
exceed two hundred eighty dollars per week; nor be less than twenty
dollars per week; except that if the employee's wages at the time of
injury are less than twenty dollars per week, he or she shall receive
his or her full weekly wages. In no event shall compensation when
combined with decreased earnings or earning capacity exceed the amount
of wages which the employee was receiving at the time the injury
occurred. Compensation for permanent or temporary partial disability, or
for permanent or temporary total disability due to an accident or
disablement resulting from an occupational disease that occurs (1) on or
after July first, nineteen hundred ninety-one and prior to July first,
nineteen hundred ninety-two, shall not exceed three hundred fifty
dollars per week; (2) on or after July first, nineteen hundred
ninety-two, shall not exceed four hundred dollars per week; nor be less
than forty dollars per week except that if the employee's wages at the
time of injury are less than forty dollars per week, the employee shall
receive his or her full wages. In no event shall compensation when
combined with decreased earnings or earning capacity exceed the amount
of wages the employee was receiving at the time the injury occurred.
(b) Compensation for temporary total disability due to an accident or
disablement resulting from an occupational disease that occurs on or
after July first, nineteen hundred seventy-four, and prior to July
first, nineteen hundred seventy-eight, shall not exceed one hundred
twenty-five dollars per week nor be less than thirty dollars per week;
except that if the employee's wages at the time of injury are less than
thirty dollars per week, he shall receive his full weekly wages.
Compensation for permanent total disability or for permanent or
temporary partial disability due to an accident or disablement resulting
from an occupational disease that occurs on or after July first,
nineteen hundred seventy-four, and prior to January first, nineteen
hundred seventy-eight, shall not exceed ninety-five dollars per week;
nor be less than twenty dollars per week; except that if the employee's
wages at the time of injury are less than twenty dollars per week, he
shall receive his full weekly wages. In no event shall compensation when
combined with decreased earnings or earning capacity exceed the amount
of wages which the employee was receiving at the time the injury
occurred.
(c) Compensation for temporary total disability due to an accident or
disablement resulting from an occupational disease that occurs on or
after July first, nineteen hundred seventy and prior to July first,
nineteen hundred seventy-four, shall not exceed ninety-five dollars per
week nor be less than thirty dollars per week; except that if the
employee's wages at the time of injury are less than thirty dollars per
week, he shall receive his full weekly wages. Compensation for permanent
total disability or for permanent or temporary partial disability due to
an accident or disablement resulting from an occupational disease that
occurs on or after July first, nineteen hundred seventy and prior to
July first, nineteen hundred seventy-four, shall not exceed eighty
dollars per week; nor be less than twenty dollars per week; except that
if the employee's wages at the time of injury are less than twenty
dollars per week, he shall receive his full weekly wages. In no event
shall compensation when combined with decreased earnings or earning
capacity exceed the amount of wages which the employee was receiving at
the time the injury occurred.
(d) Compensation for temporary total disability due to an accident or
disablement resulting from an occupational disease that occurs on or
after July first, nineteen hundred sixty-eight, and prior to July first,
nineteen hundred seventy, shall not exceed eighty-five dollars per week
nor be less than thirty dollars per week; except that if the employee's
wages at the time of injury are less than thirty dollars per week, he
shall receive his full weekly wages. Compensation for permanent total
disability or for permanent or temporary partial disability due to an
accident or disablement resulting from an occupational disease that
occurs on or after July first, nineteen hundred sixty-eight, and prior
to July first, nineteen hundred seventy, shall not exceed seventy
dollars per week; nor be less than twenty dollars per week; except that
if the employee's wages at the time of injury are less than twenty
dollars per week, he shall receive his full weekly wages. In no event
shall compensation when combined with decreased earnings or earning
capacity exceed the amount of wages which the employee was receiving at
the time the injury occurred.
(e) Compensation for permanent or temporary partial disability, or for
permanent or temporary total disability due to an accident or
disablement resulting from an occupational disease that occurs on or
after July first, nineteen hundred sixty-five, and prior to July first,
nineteen hundred sixty-eight, shall not exceed sixty dollars per week;
nor be less than twenty dollars per week; except that if the employee's
wages at the time of injury are less than twenty dollars per week, he
shall receive his full weekly wages. In no event shall compensation when
combined with decreased earnings or earning capacity exceed the amount
of wages which the employee was receiving at the time the injury
occurred.
(f) Compensation for permanent or temporary partial disability, or for
permanent or temporary total disability due to an accident or
disablement resulting from an occupational disease that occurs on or
after July first, nineteen hundred sixty-two and prior to July first
nineteen hundred sixty-five, shall not exceed fifty-five dollars per
week; nor be less than twenty dollars per week; except that if the
employee's wages at the time of injury are less than twenty dollars per
week, he shall receive his full weekly wages. In no event shall
compensation when combined with decreased earnings or earning capacity
exceed the amount of wages which the employee was receiving at the time
the injury occurred.
(g) Compensation for permanent or temporary partial disability, or for
permanent or temporary total disability due to an accident or
disablement resulting from an occupational disease that occurs on or
after July first, nineteen hundred sixty and prior to July first,
nineteen hundred sixty-two, shall not exceed fifty dollars per week; nor
be less than twenty dollars per week, except that if the employee's
wages at the time of injury are less than twenty dollars per week, he
shall receive his full weekly wages. In no event shall compensation when
combined with decreased earnings or earning capacity exceed the amount
of wages which the employee was receiving at the time the injury
occurred.
(h) Compensation for permanent or temporary partial disability, or for
permanent or temporary total disability due to an accident or
disablement resulting from an occupational disease that occurs on or
after July first, nineteen hundred fifty-eight and prior to July first,
nineteen hundred sixty, shall not exceed forty-five dollars per week;
nor, except in cases of permanent total disability, be less than twenty
dollars per week; except that if the employee's wages at the time of
injury are less than twenty dollars per week, he shall receive his full
weekly wages; further provided, that in each case of permanent total
disability minimum compensation shall not be less than twenty dollars
per week, except that where the employee's wages at the time of injury
are less than twenty dollars per week he shall receive his full weekly
wages. In no event shall compensation when combined with decreased
earnings or earning capacity exceed the amount of wages which the
employee was receiving at the time the injury occurred.
(i) Compensation for permanent or temporary partial disability, or for
permanent or temporary total disability due to an accident or
disablement resulting from an occupational disease that occurs on or
after July first, nineteen hundred fifty-four and prior to July first,
nineteen hundred fifty-eight, shall not exceed thirty-six dollars per
week; nor, except in cases of permanent total disability, be less than
twelve dollars per week; except that if the employee's wages at the time
of injury are less than twelve dollars per week, he shall receive his
full weekly wages; further provided, that in each case of permanent
total disability minimum compensation shall not be less than fifteen
dollars per week, except that where the employee's wages at the time of
injury are less than fifteen dollars per week he shall receive his full
weekly wages. In no event shall compensation when combined with
decreased earnings or earning capacity exceed the amount of wages which
the employee was receiving at the time the injury occurred.
(j) Compensation for permanent or temporary partial disability, or for
permanent or temporary total disability due to an accident or
disablement resulting from an occupational disease that occurs on or
after July first, nineteen hundred forty-eight and prior to July first,
nineteen hundred fifty-four, shall not exceed thirty-two dollars per
week and compensation for permanent or temporary partial disability, or
for permanent or temporary total disability due to an accident or
disablement resulting from an occupational disease that occurs on or
after June first, nineteen hundred forty-six, and prior to July first,
nineteen hundred forty-eight, shall not exceed twenty-eight dollars per
week; nor, except in cases of permanent total disability, be less than
twelve dollars per week; except that if the employee's wages at the time
of injury are less than twelve dollars per week, he shall receive his
full weekly wages; further provided, that in each case of permanent
total disability minimum compensation shall not be less than fifteen
dollars per week, except that where the employee's wages at the time of
injury are less than fifteen dollars per week, he shall receive his full
weekly wages but in no event shall compensation when combined with
decreased earnings or earning capacity exceed the amount of wages which
the employee was receiving at the time the injury occurred; further
provided, that compensation may be in excess of twenty-five dollars but
shall not exceed twenty-eight dollars per week for permanent or
temporary total disability due to an accident or disablement resulting
from an occupational disease that occurred on or after June first,
nineteen hundred forty-four, and prior to July first, nineteen hundred
forty-eight, and in each case of temporary total disability minimum
compensation shall not be less than twelve dollars per week, except that
where the employee's wages at the time of injury are less than twelve
dollars per week, he shall receive his full weekly wages; and further
provided that, because of existing conditions due to the war
compensation for permanent or temporary total disability may be in
excess of twenty-five dollars but shall not exceed twenty-eight dollars
per week for any period of disability arising out of claims accruing
during the three year period commencing June first, nineteen hundred
forty-four.
6-a. Reclassification of disabilities. Subject to the limitations set
forth in sections twenty-five-a and one hundred twenty-three of this
chapter, the board may, at any time, without regard to the date of
accident, upon its own motion, or on application of any party in
interest, reclassify a disability upon proof that there has been a
change in condition, or that the previous classification was erroneous
and not in the interest of justice.
7. Previous disability. The fact that an employee has suffered
previous disability or received compensation therefor shall not preclude
him from compensation for a later injury nor preclude compensation for
death resulting therefrom; but in determining compensation for the later
injury or death his average weekly wages shall be such sum as will
reasonably represent his earning capacity at the time of the later
injury, provided, however, that an employee who is suffering from a
previous disability shall not receive compensation for a later injury in
excess of the compensation allowed for such injury when considered by
itself and not in conjunction with the previous disability except as
hereinafter provided in subdivision eight of this section.
8. Disability following previous permanent physical impairment. (a)
Declaration of policy and legislative intent. As a guide to the
interpretation and application of this subdivision, the policy and
intent of this legislature is declared to be as follows:
First: That every person in this state who works for a living is
entitled to reasonable opportunity to maintain his independence and
self-respect through self-support even after he/she has been physically
handicapped by injury or disease;
Second: That any plan which will reasonably, equitably and practically
operate to break down hindrances and remove obstacles to the employment
of partially disabled persons honorably discharged from our armed
forces, or any other physically handicapped persons, is of vital
importance to the state and its people and is of concern to this
legislature;
Third: That it is the considered judgment of this legislature that the
system embodied in this subdivision, which makes a logical and equitable
adjustment of the liability under the workers' compensation law which an
employer must assume in hiring employees, constitutes a practical and
reasonable approach to a solution of the problem for the employment of
physically handicapped persons.
Moreover, because of the insidious nature of slowly developing
diseases such as silicosis and other dust diseases and because of the
reluctance on the part of employers to employ persons previously exposed
to silica or other harmful dust, means should also be provided whereby
employers will be encouraged to employ and to continue the employment of
such persons, by apportioning liability fairly between the employer and
industry as a whole without at the same time removing any incentive for
the prevention of harmful dust diseases.
(b) Definition. As used in this subdivision, "permanent physical
impairment" means any permanent condition due to previous accident or
disease or any congenital condition which is or is likely to be a
hindrance or obstacle to employment.
(c) Permanent total disability after permanent partial disability.
Notwithstanding the provisions of paragraph (d) of this subdivision, if
an employee who has previously incurred permanent partial disability
through the loss of one hand, one arm, one foot, one leg, or one eye,
incurs permanent total disability through the loss of another member or
organ, he/she shall be paid, in addition to the compensation for
permanent partial disability provided in this section and after the
cessation of the payments for the prescribed period of weeks special
additional compensation during the continuance of such total disability
to the amount of sixty-six and two-thirds per centum of the average
weekly wage earned by him/her at the time the total permanent disability
was incurred. If such employee shall establish an earning capacity by
employment he shall be paid during the period of such employment,
instead of the additional compensation above provided, two-thirds of the
difference between his average weekly wages at the time the total
disability was incurred and his wage earning capacity as determined by
his actual earnings in such employment, subject to the limitations in
subdivision six of this section. Such additional compensation, and
expense as in this subdivision provided, shall be paid out of the
special disability fund and in the manner as hereinafter in this
subdivision provided.
(d) If an employee of an employer who has secured the payment of
compensation as required under the provisions of section fifty of this
chapter, who had a total or partial loss or loss of use of one hand, one
arm, one foot, one leg or one eye, or who has other permanent physical
impairment incurs a subsequent disability by accident arising out of and
in the course of his employment or an occupational disease arising
therefrom, resulting in a permanent disability caused by both conditions
that is materially and substantially greater than that which would have
resulted from the subsequent injury or occupational disease alone, the
employer or his insurance carrier shall in the first instance pay all
awards of compensation and all medical expense provided by this chapter,
but such employer or his insurance carrier, except as specifically
provided in paragraph (ee) of this subdivision, shall be reimbursed from
the special disability fund created by this subdivision for all
compensation and medical benefits subsequent to those payable for the
first one hundred four weeks of disability for claims where the date of
accident or date of disablement occurred prior to August first, nineteen
hundred ninety-four, and two hundred sixty weeks of disability for
claims where the date of accident or date of disablement occurred on or
after August first, nineteen hundred ninety-four, regardless of
knowledge on the part of the employer as to the existence of such
pre-existing permanent physical impairment.
Notwithstanding anything to the contrary in this chapter, there may be
apportionment of liability for the special disability fund under this
subdivision within a single claim by disposition between the fund,
carriers, self-insurers or employers.
(e) If the subsequent injury of such an employee resulting from an
accident arising out of and in the course of his employment or an
occupational disease resulting therefrom, as set forth in paragraph (d)
of this subdivision, shall result in the death of the employee and it
shall be determined that either the injury or death would not have
occurred except for such pre-existing permanent physical impairment, the
employer or his insurance carrier shall in the first instance pay the
funeral expenses and the death benefits prescribed by this chapter, but
he or his insurance carrier, except as specifically provided in
paragraph (ee) of this subdivision, shall be reimbursed from the special
disability fund created by this subdivision for all death benefits
payable in excess of one hundred four weeks of disability for claims
where the date of accident or date of disablement occurred prior to
August first, nineteen hundred ninety-four, and two hundred sixty weeks
of disability for claims where the date of accident or date of
disablement occurred on or after August first, nineteen hundred
ninety-four, regardless of knowledge on the part of the employer as to
the existence of such pre-existing permanent physical impairment.
(ee) If an employee of an employer who has secured the payment of
compensation as required under the provisions of section fifty of this
chapter is disabled from silicosis or other dust disease, or in the
event of death, death was due to silicosis or other dust disease, and if
such an employee has been subject to an injurious exposure in an
employment defined under paragraph twenty-nine of subdivision two of
section three of this chapter, the provisions of this subdivision shall
apply except as hereinafter stated; and it shall not be required that
the employee had, either at the time of hiring or during the employment,
any previous physical condition or disability which may result in such
disability or death.
In all such cases the employer or his insurance carrier shall in the
first instance pay all awards of compensation and all medical expense
provided by this chapter; and in the event of death, the employer or his
insurance carrier shall also in the first instance pay the funeral
expenses and the death benefits prescribed by this chapter; but such
employer or his insurance carrier shall be reimbursed from the special
disability fund created by this subdivision for all compensation and
medical benefits subsequent to those payable for the first one hundred
four weeks of disability for claims where the date of accident or date
of disablement occurred prior to August first, nineteen hundred
ninety-four, and two hundred sixty weeks of disability for claims where
the date of accident or date of disablement occurred on or after August
first, nineteen hundred ninety-four, and, in the event of death, the
employer or his insurance carrier shall be reimbursed from the special
disability fund created by this subdivision for all death benefits
payable in excess of one hundred four weeks for claims where the date of
accident or date of disablement occurred prior to August first, nineteen
hundred ninety-four, and two hundred sixty weeks for claims where the
date of accident or date of disablement occurred on or after August
first, nineteen hundred ninety-four; provided, however, that when total
disability or death occurred after July first, nineteen hundred
forty-seven, and prior to July first, nineteen hundred seventy-four, the
employer or his insurance carrier shall be reimbursed from the special
disability fund created by this subdivision for all compensation and
medical benefits including funeral expenses and death benefits
subsequent to those payable for the first two hundred sixty weeks of
disability and death benefits combined; and further provided, however,
that in the event of death due to silicosis or other dust disease on or
after July first, nineteen hundred forty-seven, of such an employee who
shall have been totally disabled from silicosis or other dust disease
prior to such date, the employer or his insurance carrier shall be
reimbursed from the special disability fund created by this subdivision
for death benefits subsequent to those payable for the first one hundred
four weeks.
The compensation of an employee who has heretofore been found to be
totally and permanently disabled from silicosis or other dust disease
and whose disablement occurred prior to July first, nineteen hundred
forty-seven, shall be continued or resumed, as the case may be, after
June first, nineteen hundred fifty-one, and payments shall be made
during continuance of such disability at his/her regular weekly rate,
notwithstanding the fact that such compensation is in excess of the
maximum provided for his/her case under former article four-a of this
chapter; but such compensation in excess of the maximum so provided
shall be paid from the special fund created by this subdivision.
(f) Any award under this subdivision shall be made against the
employer or his or her insurance carrier, but if such employer or
insurance carrier be entitled to reimbursement as provided in this
subdivision, notice or claim of the right to such reimbursement shall be
filed with the board in writing prior to the final determination that
the resulting disability is permanent, but in no case more than one
hundred four weeks after the date of disability or death or fifty-two
weeks after the date that a claim for compensation is filed with the
chair, whichever is later, or in the event of the reopening of a case
theretofore closed, no later than the determination of permanency upon
such reopening.
The employer or his or her insurance carrier shall in the first
instance make the payments of compensation and medical expenses provided
by this subdivision. Whenever for any reason payments are not made by
the employer or his or her insurance carrier at any time after the
payments have been made for the first one hundred four weeks for claims
where the date of accident or date of disablement occurred prior to
August first, nineteen hundred ninety-four, and two hundred sixty weeks
for claims where the date of accident or date of disablement occurred on
or after August first, nineteen hundred ninety-four, the payments of
subsequent compensation and medical expenses shall be made out of the
special disability fund by the commissioner of taxation and finance upon
vouchers approved by the chair of the workers' compensation board. In
case any payments prior to the expiration of the first one hundred four
weeks for claims where the date of accident or date of disablement
occurred prior to August first, nineteen hundred ninety-four, and two
hundred sixty weeks for claims where the date of accident or date of
disablement occurred on or after August first, nineteen hundred
ninety-four are not made by the employer or his or her insurance carrier
by reason of the insolvency of such carrier, the payments until the
expiration of one hundred four weeks for claims where the date of
accident or date of disablement occurred prior to August first, nineteen
hundred ninety-four, and two hundred sixty weeks for claims where the
date of accident or date of disablement occurred on or after August
first, nineteen hundred ninety-four shall be made out of the stock
workers' compensation security fund created by the provisions of section
one hundred seven of this chapter if the insolvent carrier be a stock
company, or out of the mutual workers' compensation security fund
created under the provisions of section one hundred nine-d of this
chapter if the carrier be a mutual company. If any such payments are not
made by an employer permitted to secure the payment of compensation
pursuant to the provisions of subdivision three of section fifty of this
chapter, the payments shall be made out of the proceeds of the sale of
any securities deposited by the employer with the chair, upon vouchers
approved by the chair, until such payments have been made for one
hundred four weeks for claims where the date of accident or date of
disablement occurred prior to August first, nineteen hundred
ninety-four, and two hundred sixty weeks for claims where the date of
accident or date of disablement occurred on or after August first,
nineteen hundred ninety-four, from the date of disability, after which
date they shall be made out of the special disability fund in the manner
above provided.
In all cases in which awards have been made and charged against the
special fund or injuries have occurred which would require payments to
be made in accordance with the provisions of former subdivision eight of
this section as it existed immediately prior to the time this
subdivision, as hereby added, takes effect, the compensation so awarded
or that shall be awarded in such cases shall continue to be paid out of
the special disability fund by the commissioner of taxation and finance
upon vouchers approved by the chair of the workers' compensation board,
as though this subdivision had not been enacted.
(g) Upon the making of a determination that an employer or insurance
carrier is entitled to reimbursement from the special disability fund in
any case where the employer or insurance carrier has made payment into
the aggregate trust fund, as provided in section twenty-seven of this
chapter, or where payment of compensation has been commuted into one or
more lump sum payments, the employer or insurance carrier shall be
reimbursed forthwith for the sums paid in excess of those payable for
one hundred four weeks for claims where the date of accident or date of
disablement occurred prior to August first, nineteen hundred
ninety-four, two hundred sixty weeks for claims where the date of
accident or date of disablement occurred on or after August first,
nineteen hundred ninety-four or two hundred sixty weeks in a silicosis
or other dust disease case as otherwise provided in paragraph (ee) of
this subdivision, exclusive of administrative and loading charges paid
pursuant to section twenty-seven, in accordance with the decision and
order of the board. In all other cases such employer or insurance
carrier shall, periodically every six months from the decision and order
of the board, be reimbursed from such special disability fund for all
compensation and medical expense in accordance with the provisions of
paragraph (f) of this subdivision.
(h) Special disability fund. The fund heretofore maintained and
provided for by and pursuant to former subdivision eight of this
section, is hereby continued and shall retain the liabilities heretofore
charged or chargeable thereto under the provisions of such former
subdivision eight of this section as it existed immediately prior to the
time this subdivision, as hereby added, takes effect, and the
liabilities chargeable thereto under the provisions of former
subdivision eight-a of this section as added by chapter seven hundred
forty-nine of the laws of nineteen hundred forty-four and repealed at
the same time this subdivision, as hereby added, takes effect, and
payments therefrom on account of such liabilities shall continue to be
made as provided herein. The said fund shall be known as the special
disability fund and shall be available only for the purposes stated in
this subdivision, and the assets thereof shall not at any time be
appropriated or diverted to any other use or purpose. The chair of the
board shall, as soon as practicable after April first, nineteen hundred
forty-five, assess upon and collect from each insurance carrier,
including the state insurance fund and any county, city, town, village
or other political subdivision failing to secure compensation pursuant
to subdivision one or two of section fifty of this chapter, a sum equal
to one per centum of the total compensation paid by such carrier in the
year ending March thirty-first next preceding the date of such
assessment. As soon as practicable after May first in the year nineteen
hundred fifty-eight, and annually thereafter as soon as practicable
after January first in each succeeding year, the chair of the board
shall assess upon and collect from all self-insurers, the state
insurance fund, and all insurance carriers, a sum equal to one hundred
fifty per centum of the total disbursements made from the special
disability fund during the preceding calendar year, less the amount of
the net assets in such fund as of December thirty-first of said
preceding calendar year. Such sum shall be allocated to (i)
self-insurers and the state insurance fund based upon the proportion
that the total compensation payments made by all self-insurers and the
state insurance fund bore to the total compensation payments made by all
self-insurers, the state insurance fund and all insurance carriers and
(ii) insurance carriers based upon the proportion that the total
compensation payments made by all insurance carriers bore to the total
compensation payments by all self-insurers, the state insurance fund and
all insurance carriers during the fiscal year which ended within said
preceding calendar year. The portion of such sum allocated to
self-insurers and the state insurance fund that shall be collected from
each self-insurer and the state insurance fund shall be a sum equal to
the proportion of the amount which the total compensation payments of
each such self-insurer or the state insurance fund bore to the total
compensation payments made by all self-insurers and the state insurance
fund during the fiscal year which ended within said preceding calendar
year. The portion of such sum allocated to insurance carriers that shall
be collected from each insurance carrier shall be a sum equal to that
proportion of the amount which the total premiums written by each such
insurance carrier bore to the total written premiums reported by all
insurance carriers during the fiscal year which ended within said
preceding calendar year. For the purposes of this paragraph, "direct
premiums written" means gross premiums, including policy and membership
fees, less return premiums and premiums on polices not taken. An
employer who has ceased to be a self-insurer shall continue to be liable
for any assessments into said fund on account of any compensation
payments made by him or her on his or her account during such fiscal
year, and the security fund, created under the provisions of section one
hundred seven of this chapter, shall, in the event of the insolvency of
any insurance company, be liable for any assessments that would have
been made against such company except for its insolvency. No assessment
shall be payable from the aggregate trust fund, created under the
provisions of section twenty-seven of this article, but such fund shall
continue to be liable for all compensation that shall be payable under
any award or order of the board, the commuted value of which has been
paid into such fund. Such assessments when collected shall be deposited
with the commissioner of taxation and finance for the benefit of such
fund. Such assessments shall not constitute an element of loss for the
purpose of establishing rates for workers' compensation insurance but
shall for the purpose of collection be treated as separate costs by
carriers. All insurance carriers and the state insurance fund, shall
collect such assessments from their policyholders through a surcharge
based on premium in accordance with rules set forth by the New York
compensation insurance rating board, as approved by the superintendent
of insurance. Such surcharge shall be considered as part of premium for
purposes prescribed by law including, but not limited to, computing
premium tax, reporting to the superintendent of insurance pursuant to
section ninety-nine of this chapter and section three hundred seven of
the insurance law, determining the limitation of expenditures for the
administration of the state insurance fund pursuant to section
eighty-eight of this chapter and the cancellation by an insurance
carrier, including the state insurance fund, of a policy for non-payment
of premium. The provisions of this paragraph shall not apply with
respect to policies containing coverage pursuant to subsection (j) of
section three thousand four hundred twenty of the insurance law relating
to every policy providing comprehensive personal liability insurance on
a one, two, three or four family owner-occupied dwelling. The state
insurance fund shall, on or before April first, nineteen hundred
ninety-four, notify its insureds that such assessments shall be, for the
purpose of recoupment, treated as separate costs for the purpose of
premiums billed on and after October first, nineteen hundred
ninety-four.
For the purposes of this paragraph, except as otherwise provided, the
term "insurance carrier" shall include only stock corporations, mutual
corporations and reciprocal insurers authorized to transact the business
of workers' compensation insurance in this state and the term
"self-insurer" shall include any employer or group of employers
permitted to pay compensation directly under the provisions of
subdivision three, three-a or four of section fifty of this chapter.
The commissioner of taxation and finance is hereby authorized to
receive and credit to such special disability fund any sum or sums that
may at any time be contributed to the state by the United States of
America under any act of congress, or otherwise, to which the state may
be or become entitled by reason of any payments made out of such fund.
The commissioner of taxation and finance shall be the custodian of
said fund and shall invest any surplus or reserve moneys thereof in
securities which constitute legal investments for savings banks under
the laws of this state and in interest bearing certificates of deposit
of a bank or trust company located and authorized to do business in this
state or of a national bank located in this state secured by a pledge of
direct obligations of the United States or of the state of New York in
an amount equal to the amount of such certificates of deposit, and may
sell any of the securities or certificates of deposit in which such fund
is invested if necessary for the proper administration or in the best
interest of such fund. Disbursements from such fund as provided by this
subdivision shall be made by the commissioner of taxation and finance
upon vouchers signed by the chair of the board.
The commissioner of taxation and finance, as custodian of such fund,
annually as soon as practicable after January first, shall furnish to
the chair of the board a statement of the fund, setting forth the
balance of moneys in the said fund as of the beginning of the calendar
year, the income of the fund, the summary of payments out of the fund on
account of reimbursements and other charges ordered to be paid by the
board, and all other charges against the fund, and setting forth the
balance of the fund remaining to its credit on December thirty-first.
Such statement shall be open to public inspection in the office of the
secretary of the board.
(i) When an application for apportionment of compensation is made
under this subdivision, the chair of the workers' compensation board
shall appoint a representative of such fund in such proceedings, but
whenever it shall appear that, through any committee, board or
organization representative of the interest of employers or insurance
carriers, an attorney has been appointed to act for and on behalf of
such employers and insurance carriers generally to represent such fund
in any proceedings brought hereunder, the chair of the board may
designate such attorney as the representative of such special disability
fund in proceedings involving claims against such fund. Such
representative shall thereafter be given notice of all proceedings
involving the rights or obligations of such fund. Such representative
may apply to the chair of the board for authority to hire such medical
and other experts and to defray the expense thereof and of such
witnesses as may be necessary to a proper defense of any claim, within
an amount in the discretion of the chair and, if authorized, such amount
shall be a charge against such special disability fund.
The provisions of this chapter with respect to procedure, except as
may be otherwise provided in this subdivision, and the right of appeal
shall be preserved to the claimant and to the employer or his insurance
carrier and to such fund through its representative and attorney as
herein provided.
(j) The provisions of this subdivision, except as herein otherwise
provided, shall not be applicable to any case where the accident causing
the subsequent injury or death or the disablement or death from a
subsequent occupational disease shall have occurred prior to the time
this subdivision, as hereby added, takes effect, provided, however, that
any rights that have accrued under former subdivision eight or eight-a
of this section prior to the time this subdivision, as hereby added,
takes effect shall continue to inure to the benefit of any persons
affected thereby as though such subdivisions had not been repealed.
(k) The additional compensation required to be paid by an employer in
the case of the injury of a minor illegally employed, in accordance with
the provisions of subdivisions one and two of section fourteen-a of this
chapter, shall not be reimbursable under the provisions of this
subdivision.
(l) Notwithstanding anything to the contrary in this subdivision, when
an employer or carrier shall have paid additional benefits to an
employee pursuant to subdivision six of section fourteen of this article
as a result of the employee's increased average weekly wages from wages
earned in concurrent employment, reimbursement for all such additional
benefits shall be made to the employer or carrier from the special
disability fund created by this subdivision. It shall not be required
that the employee had, either at the time of hiring or during the
employment, any previous physical condition or disability, nor shall it
be required that the employee's disability be permanent in nature.
Notice of the right to reimbursement shall be filed with the board in
writing prior to the decision making an award, and reimbursement shall
be made periodically, every six months from the decision of the board.
9. Expenses for rehabilitating injured employees. An employee, who as
a result of injury is or may be expected to be totally or partially
incapacitated for a remunerative occupation and who, under the direction
of the state education department is being rendered fit to engage in a
remunerative occupation, may receive additional compensation necessary
for his rehabilitation, not more than thirty dollars per week of which
may be expended for maintenance. Such expense and such of the
administrative expenses of the state education department as are
properly assignable to the expenses of rehabilitating employees entitled
to compensation as a result of injuries under this chapter, shall be
paid out of a special fund created in the following manner: The
employer, or if insured, his insurance carrier, shall pay into the
vocational rehabilitation fund for every case of injury causing death,
in which there are no persons entitled to compensation, the sum of five
hundred dollars where such injury occurred prior to July first, nineteen
hundred sixty-three and the sum of one thousand dollars where such
injury shall occur on or after July first, nineteen hundred sixty-three
and the sum of two thousand dollars where such injury shall occur on or
after September first, nineteen hundred seventy-eight. The commissioner
of taxation and finance and the state comptroller shall be the joint
custodians of this special fund and may invest any surplus moneys
thereof in securities which constitute legal investments for savings
banks under the laws of this state and in interest bearing certificates
of deposit of a bank or trust company located and authorized to do
business in this state or of a national bank located in this state
secured by a pledge of direct obligations of the United States or of the
state of New York in an amount equal to the amount of such certificates
of deposit. He may also sell any of the securities or certificates of
deposit in which such fund is invested if necessary for the proper
administration or in the best interests of such fund. The provisions of
this paragraph shall not apply with respect to policies containing
coverage pursuant to subdivision four-a of section one hundred
sixty-seven of the insurance law relating to every policy providing
comprehensive personal liability insurance on a one, two, three or four
family owner-occupied dwelling.
Disbursements from the vocational rehabilitation fund for the
additional compensation provided for by this section shall be paid by
the commissioner of taxation and finance on warrants drawn by the state
comptroller upon vouchers signed by the commissioner of education or the
deputy commissioner of education provided that the compensation claim
number of an injured employee undergoing vocational rehabilitation has
been verified by the chairman.
Disbursements from the vocational rehabilitation fund for
administrative expenses of the state education department shall be paid
by the commissioner of taxation and finance on warrants drawn by the
state comptroller upon vouchers signed by the commissioner of education
or the deputy commissioner of education.
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