2010 New York Code
WKC - Workers' Compensation
Article 2 - (9 - 35) COMPENSATION
27 - 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,  or  if  any  such  award  made on or after July first, two
  thousand seven requires payment for permanent partial  disability  under
  paragraph  w  of subdivision three of section fifteen of this article 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 article.
    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  the  industry
  standard  rate,  as  determined  by  the  superintendent of insurance by
  regulation, 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 the industry standard rate. 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 industry

standard rate,  minus  however  the  cost,  if  any,  of  the  actuarial
  computation  made  by  or on behalf of the board. In the case of a claim
  for the death of an employee resulting from an accident occurring on  or
  subsequent  to  January first, two thousand one, the present value of an
  award paid into the aggregate trust fund shall be  calculated  based  on
  the  assumption that any child while under the age of twenty-three years
  will be enrolled and attending as a full time student in  an  accredited
  educational  institution  and  would thereby be entitled to benefits for
  all periods while under the age of twenty-three years.  After  all  such
  children  reach  the age of twenty-three, the aggregate trust fund shall
  refund to the carrier which paid such present value into such  fund  the
  portion  of  such  present  value  representing  benefits for which such
  children were not actually entitled because they were not  enrolled  and
  attending   as   a  full  time  student  in  an  accredited  educational
  institution plus simple interest on  such  difference  at  the  industry
  standard rate.
    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,  at  six per centum per annum on claims
  based on accidents occurring  from  September  first,  nineteen  hundred
  eighty-three up to and including December thirty-first, two thousand and
  at  the  industry  standard  rate 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, at six per
  centum per annum on claims based on accidents occurring  from  September
  first,  nineteen  hundred  eighty-three  up  to  and  including December
  thirty-first, two thousand and at the industry standard rate  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, at six per
  centum per annum on claims based on accidents occurring  from  September
  first,  nineteen  hundred  eighty-three  up  to  and  including December
  thirty-first, two thousand and at the industry standard rate  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  this  section  and  interest  at a standard to be
  determined by the superintendent of insurance by regulation.
    8. In the case of a claim concerning which the  aggregate  trust  fund
  enters  a  waiver  agreement  pursuant  to  section  thirty-two  of this
  article, the insurance carrier, as  defined  in  subdivision  twelve  of
  section  two  of this chapter, which paid the present value of the award
  for such claim, shall not be entitled to a refund of any portion of  the
  present value of such award.