2019 New York Laws
WKC - Workers' Compensation
Article 2 - Compensation
25-A - 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  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 chair 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.
  1-a. 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. No application by a self-insured
employer or an insurance carrier for transfer of liability of a claim to
the fund for reopened cases shall be accepted by the board on  or  after
the  first  day  of January, two thousand fourteen except that the board
may make a finding after such date pursuant to section  twenty-three  of
this article upon a timely application for review.
  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 article 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  article  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 article 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  article;
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  article  shall  be  required. In addition to the
assessments made against all insurance  carriers  for  the  expenses  of
administering  this chapter provided for under the provisions of section
one hundred 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 value of total supplemental benefits to  be  paid  from
such fund as reimbursement pursuant to subdivision nine of this section,
and (4) a reserve equal to ten per cent of the sum of items (1), (2) and
(3)  of  this  paragraph. Annually, as soon as practicable after January
first in each year, the chair shall ascertain the condition of the  fund
and  whenever  the  assets  shall  fall  below the prescribed minimum as
herein provided the chair shall collect an amount sufficient to  restore
the  fund to the prescribed minimum. Commencing on the first of January,
two thousand fourteen, the amount collected from all employers  required
to  obtain  workers'  compensation  coverage  to  maintain the financial
integrity of the fund  may  be  paid  over  a  period  of  time  at  the
discretion  of  the  chair  based  upon  an  analysis  of  the financial
condition of the fund. Such payment as determined by the chair shall  be
included  in the assessment rate established pursuant to subdivision two
of section one hundred  fifty-one  of  this  chapter.  The  chair  shall

promulgate  regulations  to  administer  claims whose liability has been
transferred to the fund for reopened cases. Such regulations may include
exercise of the chair's authority  to  administer  existing  claims,  to
procure  management  for  those  claims,  or to sell such liability. The
chair may examine into the condition of the fund at any time on  his  or
her own initiative or on request of the attorney of the fund.
  The  provisions  of  this  subdivision shall not apply with respect to
policies containing coverage pursuant  to  section  thirty-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.
  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 financial services. The  superintendent  of  financial
services  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.  For  applications  by self-insured employers or insurance carriers
for transfer of liability for compensation  to  the  fund  for  reopened
cases  under  this section, received by the board prior to the first day
of January, two thousand fourteen, the chair shall appoint  an  attorney
in  such  proceedings  to  represent such fund in proceedings brought to
enforce a claim against such fund. Such attorney may apply to the  chair
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
chair 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.