2006 New York Code - Procedure And Payment Of Compensation In Certain Claims; Limitation Of Right To Compensation.

 
    §  25-a.  Procedure  and  payment  of  compensation in certain claims;
  limitation of right to compensation. 1. Notwithstanding other provisions
  of this chapter, when an application for  compensation  is  made  by  an
  employee or for death benefits in behalf of the dependents of a deceased
  employee,  and  the  employer has secured the payment of compensation in
  accordance with section fifty of this chapter,  (1)  after  a  lapse  of
  seven  years  from  the  date  of  the  injury  or  death  and claim for
  compensation previously has been disallowed or claim has been  otherwise
  disposed  of  without  an award of compensation, or (2) after a lapse of
  seven years from the date of the injury or death and  also  a  lapse  of
  three  years  from  the date of the last payment of compensation, or (3)
  where death resulting from the injury shall occur after the time limited
  by the foregoing provisions of (1) or (2) shall have elapsed, subject to
  the provisions of section one hundred and twenty-three of this  chapter,
  testimony  may  be taken, either directly or through a referee and if an
  award is made it shall be against the  special  fund  provided  by  this
  section.  Such an application for compensation or death benefits must be
  made on a form prescribed by the chairman for that purpose and must,  if
  a  change  in condition is claimed, be accompanied by a verified medical
  or surgical report setting forth facts on which the board  may  order  a
  hearing.  Any  award which shall be made against such special fund after
  the effective date of this act upon such an application for compensation
  or death benefits shall not be retroactive for a period of disability or
  for death benefits longer than the two years immediately  preceding  the
  date of filing of such application.
    2.  Claims  for  further  services  or  treatment rendered or supplies
  furnished as required by section thirteen hereof shall be paid from such
  fund when such service, treatment or supplies shall be authorized by the
  chairman. In cases  where  a  surgical  operation  has  previously  been
  authorized  by  the board pursuant to the provisions of subdivision five
  of section thirteen-a of this chapter, no further authorization therefor
  by the chairman under this section shall be required. The provisions  of
  this  chapter with respect to procedure and the right to appeal shall be
  preserved to the claimant and to the employer originally liable for  the
  payment  of  compensation and to such fund through its representative as
  hereinafter provided.
    3. Any awards so made  shall  be  payable  out  of  the  special  fund
  heretofore  created for such purpose, which fund is hereby continued and
  shall be known as the fund for reopened  cases.  The  employer,  or,  if
  insured, his insurance carrier shall pay into such fund, or, in the case
  of  awards  made  on  or  after July first, nineteen hundred sixty-nine,
  either into such fund or the uninsured  employers'  fund  under  section
  twenty-six-a  of this chapter in accordance with the provisions thereof,
  for every case of injury causing death for which there  are  no  persons
  entitled  to  compensation  the  sum of three hundred dollars where such
  injury occurred prior to July first, nineteen hundred forty and the  sum
  of  one  thousand dollars where such injury shall occur on or after said
  date and prior to April first, nineteen hundred forty-five, and the  sum
  of  fifteen  hundred  dollars  where such injury shall occur on or after
  April first, nineteen hundred forty-five and prior to  September  first,
  nineteen  hundred  seventy-eight  and  the sum of three thousand dollars
  where such injury shall occur on  or  after  September  first,  nineteen
  hundred  seventy-eight,  and in each case of death resulting from injury
  sustained on or after July first, nineteen hundred forty  and  prior  to
  September first, nineteen hundred seventy-eight, where there are persons
  entitled  to  compensation  but the total amount of such compensation is
  less than two  thousand  dollars  exclusive  of  funeral  benefits,  the
  employer,  or,  if  insured,  his insurance carrier, shall pay into such
  fund, or, in the case of awards made on or after  July  first,  nineteen
  hundred  sixty-nine  and  prior  to  September  first,  nineteen hundred
  seventy-eight, either into such fund or the  uninsured  employers'  fund
  under  section  twenty-six-a  of  this  chapter  in  accordance with the
  provisions thereof, the difference  between  the  sum  of  two  thousand
  dollars and the compensation, exclusive of funeral benefits, and in each
  case  of  death  resulting  from  injury sustained on or after September
  first, nineteen hundred seventy-eight, the employer, or if insured,  his
  insurance  carrier  shall pay into such fund or the uninsured employers'
  fund under section twenty-six-a of this chapter in accordance  with  the
  provisions  thereof,  the  difference  between  the sum of five thousand
  dollars and the compensation, exclusive  of  funeral  benefits  actually
  paid to or for the dependents of the deceased employee together with any
  expense  charge  required  by  section  twenty-seven  of  this  chapter;
  provided, however, that  where  death  shall  occur  subsequent  to  the
  periods  limited by subdivision one of this section no payment into such
  special fund nor to the special fund provided  by  subdivision  nine  of
  section fifteen nor to the uninsured employers' fund provided by section
  twenty-six-a  of  this  chapter  shall be required.   In addition to the
  assessments made against all insurance  carriers  for  the  expenses  of
  administering  the  workmen's  compensation  law  provided for under the
  provisions of section one hundred and fifty-one of this chapter, and the
  payments above provided, the employer, or,  if  insured,  his  insurance
  carrier,  shall pay the sum of five dollars into said fund for each case
  in which an award is made pursuant to the provisions of paragraphs a  to
  s  inclusive of subdivision three of section fifteen of this chapter, by
  reason of injury sustained between July first,  nineteen  hundred  forty
  and  June  thirtieth,  nineteen hundred forty-two, both dates inclusive,
  and the sum of ten dollars for  each  such  case  by  reason  of  injury
  sustained  between  July  first,  nineteen  hundred  forty-two  and June
  thirtieth, nineteen hundred fifty, both dates inclusive,  which  payment
  shall  be  in  addition  to  any  payment of compensation to the injured
  employee as provided in this chapter.
    There shall be maintained in the special fund at all times  assets  at
  least  equal  in  value  to  the  sum of (1) the value of awards charged
  against such fund, (2) the value of all claims that have  been  reopened
  by  the  board as a charge against such fund but as to which awards have
  not yet  been  made,  (3)  effective  January  first,  nineteen  hundred
  seventy-one,  the  total  supplemental  benefits  paid from such fund as
  reimbursement pursuant to subdivision nine of this  section  during  the
  calendar  year immediately preceding, and (4) a reserve equal to ten per
  cent of the sum of items (1) and (2).  For the purpose  of  accumulating
  funds  for  the payment of supplemental benefits pursuant to subdivision
  nine of this section, the chairman shall impose against all carriers  an
  assessment  in  the  sum  of five million dollars to be collected in the
  respective proportions established in the fiscal year  commencing  April
  first, nineteen hundred sixty-eight, under the provisions of section one
  hundred fifty-one of this chapter for each carrier. Annually, as soon as
  practicable  after  January  first  in  each  year,  the  chairman shall
  ascertain the condition of the fund and whenever the assets  shall  fall
  below  the  prescribed  minimum  as  herein  provided the chairman shall
  assess and collect  from  all  insurance  carriers,  in  the  respective
  proportions established in the prior fiscal year under the provisions of
  section  one  hundred  fifty-one  of  this  chapter for each carrier, an
  amount sufficient to restore the fund to  the  prescribed  minimum.  The
  chairman  before  making  an  assessment  as  herein provided shall give
  thirty days' notice  to  the  representative  of  the  fund,  designated
  pursuant to subdivision five of this section, that an itemized statement
  of  the  condition  of  the  fund  is  open  for  his  inspection.   The
  superintendent of insurance may examine into the condition of  the  fund
  at  any  time  on  his  own  initiative or on request of the chairman or
  representative of the fund.
    Such  assessment  and  the  payments  made  into  said  fund shall not
  constitute an element of loss for the purpose of establishing rates  for
  workers'  compensation  insurance  as  provided in the insurance law but
  shall for the purpose of recoupment be  treated  as  separate  costs  by
  carriers.  Carriers  shall  assess  such costs on their policyholders in
  accordance with rules set forth by the New York  compensation  insurance
  rating board, as approved by the superintendent of insurance.
    The  provisions  of  this  subdivision 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.
    4.  The commissioner of taxation and finance shall be the custodian of
  such special fund for reopened cases and shall invest any surplus monies
  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 for compensation provided by this section shall be paid by the
  commissioner of  taxation  and  finance  upon  vouchers  signed  by  the
  chairman.
    The  commissioner  of taxation and finance, as custodian of such fund,
  annually as soon as practicable after January first,  shall  furnish  to
  the  chairman  a  statement  of  the  fund, setting forth the balance of
  monies in the said fund as of the beginning of the year, the  income  of
  the  fund,  a  summary  of  payments  out  of  the  fund  on  account of
  compensation ordered to be paid by the board, medical and other expense,
  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
  chairman, and a copy thereof shall be transmitted by the chairman to the
  superintendent of  insurance.    The  superintendent  of  insurance  may
  examine  into  the  condition  of  such  fund  at  any  time  on his own
  initiative or on request of the chairman or representative of the  fund.
  He  shall  verify  the receipts and disbursements of the fund, and shall
  ascertain the liability of the fund upon all cases in  which  awards  of
  compensation  have  been  made  and  charged against said fund and shall
  render a report of such facts to the chairman. Such report shall also be
  open to public inspection in the office of the chairman.
    5. When an application for compensation is made  under  this  section,
  the  chairman  shall  appoint  a  representative  of  such  fund in such
  proceedings and, insofar as practicable, such representative shall be  a
  person  designated  by the employer originally liable for the payment of
  compensation, or his insurance carrier, but whenever it shall appear  to
  the  chairman  that  through  any  committee,  board  or organization or
  representative of the interest of the insurance carriers an attorney has
  been appointed to act for and on behalf of such  carriers  generally  to
  represent  such  fund in any proceedings brought hereunder, the chairman
  shall designate such attorney as  the  representative  of  the  fund  in
  proceedings   brought  to  enforce  a  claim  against  such  fund.  Such
  representative may apply to the chairman  for  authority  to  hire  such
  medical  or  other experts and to defray the expense thereof and of such
  witnesses as are necessary to a proper defense of the application within
  an amount in the discretion of the chairman and, if authorized, it shall
  be a charge against the special fund provided herein.
    6.  Notwithstanding  any  other provision of this chapter, no award of
  compensation or death benefits shall be made against said  special  fund
  or  against  an  employer  or  an  insurance  carrier  where application
  therefor is made after a lapse of eighteen years from the  date  of  the
  injury  or  death  and  also a lapse of eight years from the date of the
  last payment of compensation.
    7. For the purposes of this section the date of the  last  payment  of
  compensation  shall  be deemed to mean the date of actual payment of the
  last installment of compensation previously awarded; provided,  however,
  that  where  the  case  is disposed of by the payment of a lump sum, the
  date of last payment for the purpose of this section shall be considered
  as the date to which the amount paid in the lump  sum  settlement  would
  extend  if  the award had been made on the date the lump sum payment was
  approved at the maximum compensation rate  which  is  warranted  by  the
  employee's  earning  capacity  as  determined by the board under section
  fifteen of this chapter.
    8. The provisions of this section shall not apply  to  any  open  case
  pending  before  the  board  on  April  twenty-fourth,  nineteen hundred
  thirty-three or to any closed case in which an application for reopening
  was  received  prior  to  such  date,  or  to  awards   for   deficiency
  compensation  made  pursuant to section twenty-nine of this chapter, nor
  shall it apply during the pendency of an appeal provided for by  section
  twenty-three  of  this  chapter; provided, however, that such provisions
  shall be retroactive in effect except as to payments  into  the  special
  fund  provided  for  an employer or his insurance carrier, and except as
  otherwise herein provided.
    9. (a) Notwithstanding any other  provision  of  this  chapter,  every
  employee who is receiving workers' compensation under this chapter for a
  permanent  and  total  disability resulting from an accidental injury or
  occupational disablement which occurred prior to January first, nineteen
  hundred seventy-nine and every widow or widower who is  receiving  death
  benefits under this chapter on account of the death of his or her spouse
  prior  to  January  first,  nineteen  hundred seventy-nine shall receive
  supplemental benefits upon application  therefor  to  the  board,  which
  shall  be payable in the first instance by the employer or its insurance
  carrier in accordance with the provisions  of  this  subdivision.  These
  supplemental  benefits  shall  commence  on July first, nineteen hundred
  ninety and shall continue during the  period  of  such  permanent  total
  disability or entitlement to death benefits.
    (b)  If  such  employee,  widow  or widower is receiving the statutory
  maximum benefit in effect at the time of the accidental injury or death,
  the supplemental benefit shall be an amount which,  when  added  to  the
  regular benefit established for the case, shall equal the maximum weekly
  benefit  in effect for a permanently totally disabled employee, widow or
  widower  whose  claim  arose  on   January   first,   nineteen   hundred
  seventy-nine.
    (c)  If  such employee, widow or widower is receiving a weekly benefit
  which is less than the statutory maximum benefit which was in effect  on
  the  date  of  the  accidental injury or death, the supplemental benefit
  shall be an amount equal to the difference between the  regular  benefit
  being  received  and  a  percentage  of the maximum benefit in effect on
  January first, nineteen hundred seventy-nine, determined by  multiplying
  the  latter benefit by a fraction, the numerator of which is the regular
  benefit and the denominator of which is the statutory maximum benefit in
  effect at the time of the accidental injury or death.
    (d)  In  the  event  the  supplemental  benefit  computed  under  this
  subdivision amounts to less than five  dollars,  then  the  supplemental
  benefit  allowed shall be a minimum of five dollars, less the amount, if
  any, by which the combination  of  such  supplemental  benefit  and  the
  regular  benefit  exceeds  the  maximum  weekly  benefit in effect for a
  permanently totally disabled employee,  widow  or  widower  whose  claim
  arose on January first, nineteen hundred seventy-nine.
    (e)  The  employer  or  his  insurance carrier paying the supplemental
  benefits required under this subdivision shall claim  reimbursement  for
  each  such  case  from  the  reopened  cases  fund  under  this section,
  commencing one year from the date of the first such payment and annually
  thereafter  while  such  supplemental  payments  continued,  on  a  form
  prescribed by the chairman.
    (f)  The  special  disability  fund created under subdivision eight of
  section fifteen and  the  reopened  cases  fund  created  under  section
  twenty-five-a  and  the  aggregate  trust  fund  created  under  section
  twenty-seven of this chapter shall be deemed to  be  insurance  carriers
  for  purposes  of  this  subdivision,  other  than  the  payment  of the
  assessment under the provisions of subdivision three of this section.
    (g) Whenever payment of the supplemental benefits prescribed hereunder
  is not made by the insurance carrier by reason of the insolvency of such
  insurance carrier, or in the case of a self-insurer, by  reason  of  the
  insolvency of such self-insurer or the discontinuance of its operations,
  such payment shall be made directly out of the reopened cases fund under
  this  section  by the commissioner of taxation and finance upon vouchers
  approved by the chairman of the workmen's compensation board.