2006 New York Code - Depositing Future Payments In The Aggregate Trust Fund.

 
    §  27.  Depositing future payments in the aggregate trust fund. 1. All
  payments made into the fund pursuant to the provisions of  this  section
  shall  constitute  an  indivisible  and  aggregate  trust fund except as
  hereinafter provided.
    2. If an award under this chapter requires payment of  death  benefits
  or  other compensation by an insurance carrier or employer in periodical
  payments, the board may, in its discretion, at any time,  any  provision
  of  this  chapter to the contrary notwithstanding, compute and permit or
  require to be paid into the aggregate trust fund an amount equal to  the
  present  value  of  all  unpaid  death benefits or other compensation in
  cases in which awards are made for total permanent or permanent  partial
  disability for a period of one hundred and four weeks or more, for which
  liability  exists,  together  with  such additional sum as the board may
  deem necessary for a proportionate payment of expenses of  administering
  the  fund so created, including the cost of the actuarial computation by
  or on behalf of the board of the present value of the award, and for the
  purposes of this section such cases shall be known as discretionary type
  cases. If any such award made on or after July first,  nineteen  hundred
  thirty-five,  requires  payment for total permanent disability resulting
  from the loss of both hands, or both arms, or both feet, or  both  legs,
  or both eyes, or of any two thereof, or for permanent partial disability
  resulting  from  loss  of  an  arm,  leg, hand, foot or eye, or of death
  benefits by an insurance carrier which is a stock corporation or  mutual
  association,  which  for  the purposes of this section shall be known as
  mandatory type cases, the board shall immediately  compute  the  present
  value  thereof  and  require  payment  of such amount into the aggregate
  trust fund, together with such additional sum  as  the  board  may  deem
  necessary  for a proportionate payment of expenses of administering such
  trust fund including the cost of the  actuarial  computation  by  or  on
  behalf of the board of the present value of the award provided, however,
  that  where an employer or his insurance carrier is found to be entitled
  to reimbursement from the special disability fund of  subdivision  eight
  of  section  fifteen,  the computation of the present value of the award
  and the requirement for payment of such amount into the said trust  fund
  shall   not   be  mandatory  and  such  cases  shall  be  deemed  to  be
  discretionary type  cases;  further  provided  that  where  an  employee
  entitled  to compensation under this chapter be injured or killed by the
  negligence or wrong of another not in the same employ,  the  computation
  of the present value and the requirement for payment of such amount into
  the  said trust fund shall be held in abeyance until (1) six months have
  elapsed from the award of compensation, or in any event  not  more  than
  one  year after the date of the accident, if the injured employee, or in
  case of death, his personal representatives, spouse, parents, dependents
  or next of kin, or anyone  otherwise  entitled  to  recover  damages  at
  common law or otherwise, on account of such injury or death, have failed
  to  commence such action, (2) the termination of any such action brought
  by  the  injured  employee,  or  in  case   of   death,   his   personal
  representatives,  spouse,  parents, dependents or next of kin, or anyone
  otherwise entitled to recover damages, at common law  or  otherwise,  on
  account  of  such  injury  or  death,  under  the  provisions of section
  twenty-nine of this chapter.
    3. Upon payment by an employer or insurance carrier into the aggregate
  trust fund of an amount equal to the present value of all  unpaid  death
  benefits  or  other compensation under any such award together with such
  additional sum as the board  may  deem  necessary  for  a  proportionate
  payment  of expenses of administering such trust fund including the cost
  of the actuarial computation by or on behalf of the board of the present
  value of  the  award,  such  employer  or  insurance  carrier  shall  be
  discharged from any further liability for payment of such death benefits
  or  other  compensation,  and  payment  of  the same as provided by this
  chapter shall be assumed by the fund so created.
    4.  In  the event of a review or appeal of any such award the value of
  which has not been paid into the aggregate trust fund, if the amount  of
  award  is  modified  or changed, the employer or insurance carrier shall
  pay directly to the claimant compensation due to the date  as  of  which
  the  present  value of future benefits is payable into such fund, and to
  the said fund the present value of future benefits, but if the  original
  award  is  affirmed, the employer or insurance carrier shall pay to such
  fund the present value of the award computed as of the effective date of
  the original award and simple interest  on  such  amount  at  three  per
  centum  per  annum  computed  from the date of the original award to the
  date that payment is made into such fund, plus simple  interest  at  the
  rate  provided  in  section five thousand four of the civil practice law
  and rules, on past due payments of  compensation  to  the  date  of  the
  affirmance  of  such award, which past due payment and interest shall be
  made directly to the claimant. The foregoing provision  shall  apply  in
  the  event  of  such review or appeal regardless of whether the widow or
  widower or other parties in interest have died or the widow  or  widower
  remarried  subsequent  to  the date as of which the present value of the
  original award was computed.  If any award, the present value  of  which
  has been paid into the aggregate trust fund, is subsequently modified or
  changed  by  the  board  for any reason other than because of subsequent
  death or remarriage, the amount equal to the present value of the unpaid
  death benefits or other compensation  at  the  effective  date  of  such
  modification  or  change  shall  be  computed  on  the basis both of the
  original award and of the modified or changed award. If such  amount  is
  greater on the basis of the original award, the difference shall be paid
  by  said trust fund to the employer or insurance carrier minus the cost,
  if any, of the actuarial computation made by or on behalf of the  board.
  If such amount is greater on the basis of the modified or changed award,
  the  difference  shall  be  paid  to said trust fund by such employer or
  insurance carrier in addition to the cost,  if  any,  of  the  actuarial
  computation  made  by  or  on  behalf  of  the  board. In the case of an
  accident, occurring on or subsequent to  July  first,  nineteen  hundred
  thirty-nine,  where the present value of an award for permanent total or
  permanent partial disability other than award for a definite  number  of
  weeks  has  been paid into the aggregate trust fund, if an award is made
  for death resulting from the injury causing  the  said  disability,  the
  employer  or  insurance  carrier  which  paid  the present value of said
  disability award into such fund shall  be  entitled  to  the  difference
  between  the  amount paid into such fund and the sum disbursed from such
  fund to the injured employee prior to his  or  her  death,  plus  simple
  interest  on  such difference at three per centum per annum. In the case
  of an accident occurring  on  or  subsequent  to  July  first,  nineteen
  hundred  thirty-nine,  where the present value of an award for permanent
  partial disability for a definite number of weeks has been paid into the
  aggregate trust fund, if the injured employee dies prior to the  end  of
  such  definite  number of weeks, the employer or insurance carrier which
  made the said payment into such fund shall be entitled  to  the  present
  value of the unexpended disability benefits not payable to beneficiaries
  computed  on the basis of annuities certain with interest at the rate of
  three per centum per annum, minus however  the  cost,  if  any,  of  the
  actuarial computation made by or on behalf of the board.
    5.  All  computations made by the board shall be upon the basis of the
  survivorship annuitants table of mortality, the remarriage tables of the
  Dutch Royal Insurance Institution and interest at three and one-half per
  centum per annum on claims  based  on  accidents  occurring  up  to  and
  including  June  thirtieth,  nineteen  hundred thirty-nine, at three per
  centum per annum on claims based on accidents occurring from July first,
  nineteen  hundred  thirty-nine  up to and including August thirty-first,
  nineteen hundred eighty-three, and at six per centum per annum on claims
  based on accidents occurring thereafter, except (a) that computations of
  present values of death benefits required to be paid into the  aggregate
  trust  fund  by  an  insurance carrier which is a stock corporation or a
  mutual association shall be based, in the case of  a  dependent  parent,
  grandparent,  blind  or  physically  disabled child or spouse, upon said
  table of mortality disregarding possible change  in  or  termination  of
  dependency,  with interest at three and one-half per centum per annum on
  claims based on accidents occurring up to and including June  thirtieth,
  nineteen  hundred  thirty-nine,  at three per centum per annum on claims
  based  on  accidents  occurring  from  July  first,   nineteen   hundred
  thirty-nine  up  to  and including August thirty-first, nineteen hundred
  eighty-three, and at six  per  centum  per  annum  on  claims  based  on
  accidents  occurring  thereafter  and  (b)  that computations of present
  values of permanent partial disability benefits awarded for  a  definite
  number of weeks shall be on the basis of annuities certain with interest
  at  three and one-half per centum per annum on claims based on accidents
  occurring  up  to  and  including  June  thirtieth,   nineteen   hundred
  thirty-nine,  at three per centum per annum on claims based on accidents
  occurring from July  first,  nineteen  hundred  thirty-nine  up  to  and
  including  August thirty-first, nineteen hundred eighty-three and at six
  per centum per annum on claims based on accidents occurring thereafter.
    6. Such aggregate trust fund shall be kept separate and apart from all
  other moneys of the state insurance fund, and shall not  be  liable  for
  any  losses  or  expenses  of administration of the state insurance fund
  other than the expenses involved in the  administration  of  such  trust
  fund  including  the cost, if any, of the actuarial computations made on
  behalf of the board, nor shall the state insurance fund be charged  with
  the  losses or expenses of the aggregate trust fund beyond the amount of
  such trust fund.  Any portion of such aggregate trust fund may, by order
  of the commissioners of  the  state  insurance  fund,  approved  by  the
  superintendent  of  insurance, be invested in or loaned on the pledge of
  the same securities as provided in section eighty-seven of this  chapter
  for  the  investment  of the state insurance fund, and the commissioners
  may, upon like approval of the superintendent of  insurance,  also  sell
  any  such  securities.   Any securities belonging to the aggregate trust
  fund may be loaned by the commissioners of  the  state  insurance  fund,
  with  the  approval of the superintendent of insurance, under a security
  loan agreement as provided by section eighty-seven of this  chapter  for
  securities belonging to the state insurance fund.
    7.  For  the  purpose  of securing the solvency of the aggregate trust
  fund, there shall be required, in addition to the payments  hereinbefore
  provided for, a payment on each award, as follows:
    (a)  In  the mandatory type cases based on an accident occurring on or
  subsequent to July first, nineteen hundred forty-one up to and including
  June thirtieth, nineteen hundred forty-three an amount equal to six  per
  centum of the present value of each such case paid into such fund;
    (b)  In  the mandatory type cases based on an accident occurring on or
  subsequent to July first, nineteen hundred forty-three an  amount  equal
  to  ten per centum of the present value of each such case paid into such
  fund;
    (c) In the discretionary type cases based on an accident occurring  up
  to  and including June thirtieth, nineteen hundred thirty-nine an amount
  equal to sixteen per centum of the present value of each such case  paid
  into such fund;
    (d)  In the discretionary type cases based on an accident occurring on
  or subsequent to July first,  nineteen  hundred  thirty-nine  an  amount
  equal to ten per centum of the present value of each such case paid into
  such fund.
    Such  additional  payments  shall be required until the surplus of the
  fund equals or exceeds one per centum  of  the  total  outstanding  loss
  reserves  as shown by three successive annual reports of the fund to the
  superintendent  of  insurance  and  such  additional  payment  shall  be
  required  as  a  payment  upon each award based on an accident occurring
  prior to July first next succeeding the third such  annual  report,  but
  not  as  a  payment  upon any award based on an accident occurring on or
  after said July first; provided, however, that if and when  the  surplus
  of  the fund as shown by any annual report thereafter shall be less than
  one per  centum  of  the  total  outstanding  loss  reserves,  then  the
  additional  payments  as provided in paragraphs (a), (b), (c) and (d) of
  this subdivision shall be resumed and shall be payable  upon  any  award
  based  on  an  accident occurring on or after July first next succeeding
  the close of the year for which such annual report is made.  Thereafter,
  the suspension or resumption of additional payments as required by  this
  subdivision  shall  be  governed  by the foregoing provisions. Such loss
  reserves  shall  be  computed  based  upon  the  tables   specified   in
  subdivision five of section twenty-seven of this law and interest at six
  per centum per annum.