§ 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;\nlimitation of right to compensation. 1. Notwithstanding other\nprovisions of this chapter, when an application for compensation is made\nby an employee or for death benefits in behalf of the dependents of a\ndeceased employee, and the employer has secured the payment of\ncompensation in accordance with section fifty of this chapter, (1) after\na lapse of seven years from the date of the injury or death and claim\nfor compensation previously has been disallowed or claim has been\notherwise disposed of without an award of compensation, or (2) after a\nlapse of seven years from the date of the injury or death and also a\nlapse of three years from the date of the last payment of compensation,\nor (3) where death resulting from the injury shall occur after the time\nlimited by the foregoing provisions of (1) or (2) shall have elapsed,\nsubject to the provisions of section one hundred twenty-three of this\nchapter, testimony may be taken, either directly or through a referee\nand if an award is made it shall be against the special fund provided by\nthis section. Such an application for compensation or death benefits\nmust be made on a form prescribed by the chair for that purpose and\nmust, if a change in condition is claimed, be accompanied by a verified\nmedical or surgical report setting forth facts on which the board may\norder a hearing.\n 1-a. Any award which shall be made against such special fund after the\neffective date of this act upon such an application for compensation or\ndeath benefits shall not be retroactive for a period of disability or\nfor death benefits longer than the two years immediately preceding the\ndate of filing of such application. No application by a self-insured\nemployer or an insurance carrier for transfer of liability of a claim to\nthe fund for reopened cases shall be accepted by the board on or after\nthe first day of January, two thousand fourteen except that the board\nmay make a finding after such date pursuant to section twenty-three of\nthis article upon a timely application for review.\n 2. Claims for further services or treatment rendered or supplies\nfurnished as required by section thirteen hereof shall be paid from such\nfund when such service, treatment or supplies shall be authorized by the\nchairman. In cases where a surgical operation has previously been\nauthorized by the board pursuant to the provisions of subdivision five\nof section thirteen-a of this chapter, no further authorization therefor\nby the chairman under this section shall be required. The provisions of\nthis chapter with respect to procedure and the right to appeal shall be\npreserved to the claimant and to the employer originally liable for the\npayment of compensation and to such fund through its representative as\nhereinafter provided.\n 3. Any awards so made shall be payable out of the special fund\nheretofore created for such purpose, which fund is hereby continued and\nshall be known as the fund for reopened cases. The employer, or, if\ninsured, his insurance carrier shall pay into such fund, or, in the case\nof awards made on or after July first, nineteen hundred sixty-nine,\neither into such fund or the uninsured employers' fund under section\ntwenty-six-a of this article in accordance with the provisions thereof,\nfor every case of injury causing death for which there are no persons\nentitled to compensation the sum of three hundred dollars where such\ninjury occurred prior to July first, nineteen hundred forty and the sum\nof one thousand dollars where such injury shall occur on or after said\ndate and prior to April first, nineteen hundred forty-five, and the sum\nof fifteen hundred dollars where such injury shall occur on or after\nApril first, nineteen hundred forty-five and prior to September first,\nnineteen hundred seventy-eight and the sum of three thousand dollars\nwhere such injury shall occur on or after September first, nineteen\nhundred seventy-eight, and in each case of death resulting from injury\nsustained on or after July first, nineteen hundred forty and prior to\nSeptember first, nineteen hundred seventy-eight, where there are persons\nentitled to compensation but the total amount of such compensation is\nless than two thousand dollars exclusive of funeral benefits, the\nemployer, or, if insured, his insurance carrier, shall pay into such\nfund, or, in the case of awards made on or after July first, nineteen\nhundred sixty-nine and prior to September first, nineteen hundred\nseventy-eight, either into such fund or the uninsured employers' fund\nunder section twenty-six-a of this article in accordance with the\nprovisions thereof, the difference between the sum of two thousand\ndollars and the compensation, exclusive of funeral benefits, and in each\ncase of death resulting from injury sustained on or after September\nfirst, nineteen hundred seventy-eight, the employer, or if insured, his\ninsurance carrier shall pay into such fund or the uninsured employers'\nfund under section twenty-six-a of this article in accordance with the\nprovisions thereof, the difference between the sum of five thousand\ndollars and the compensation, exclusive of funeral benefits actually\npaid to or for the dependents of the deceased employee together with any\nexpense charge required by section twenty-seven of this article;\nprovided, however, that where death shall occur subsequent to the\nperiods limited by subdivision one of this section no payment into such\nspecial fund nor to the special fund provided by subdivision nine of\nsection fifteen nor to the uninsured employers' fund provided by section\ntwenty-six-a of this article shall be required. In addition to the\nassessments made against all insurance carriers for the expenses of\nadministering this chapter provided for under the provisions of section\none hundred fifty-one of this chapter, and the payments above provided,\nthe employer, or, if insured, his insurance carrier, shall pay the sum\nof five dollars into said fund for each case in which an award is made\npursuant to the provisions of paragraphs a to s inclusive of subdivision\nthree of section fifteen of this chapter, by reason of injury sustained\nbetween July first, nineteen hundred forty and June thirtieth, nineteen\nhundred forty-two, both dates inclusive, and the sum of ten dollars for\neach such case by reason of injury sustained between July first,\nnineteen hundred forty-two and June thirtieth, nineteen hundred fifty,\nboth dates inclusive, which payment shall be in addition to any payment\nof compensation to the injured employee as provided in this chapter.\n There shall be maintained in the special fund at all times assets at\nleast equal in value to the sum of (1) the value of awards charged\nagainst such fund, (2) the value of all claims that have been reopened\nby the board as a charge against such fund but as to which awards have\nnot yet been made, (3) effective January first, nineteen hundred\nseventy-one, the value of total supplemental benefits to be paid from\nsuch fund as reimbursement pursuant to subdivision nine of this section,\nand (4) a reserve equal to ten per cent of the sum of items (1), (2) and\n(3) of this paragraph. Annually, as soon as practicable after January\nfirst in each year, the chair shall ascertain the condition of the fund\nand whenever the assets shall fall below the prescribed minimum as\nherein provided the chair shall collect an amount sufficient to restore\nthe fund to the prescribed minimum. Commencing on the first of January,\ntwo thousand fourteen, the amount collected from all employers required\nto obtain workers' compensation coverage to maintain the financial\nintegrity of the fund may be paid over a period of time at the\ndiscretion of the chair based upon an analysis of the financial\ncondition of the fund. Such payment as determined by the chair shall be\nincluded in the assessment rate established pursuant to subdivision two\nof section one hundred fifty-one of this chapter. The chair shall\npromulgate regulations to administer claims whose liability has been\ntransferred to the fund for reopened cases. Such regulations may include\nexercise of the chair's authority to administer existing claims, to\nprocure management for those claims, or to sell such liability. The\nchair may examine into the condition of the fund at any time on his or\nher own initiative or on request of the attorney of the fund.\n The provisions of this subdivision shall not apply with respect to\npolicies containing coverage pursuant to section thirty-four hundred\ntwenty of the insurance law relating to every policy providing\ncomprehensive personal liability insurance on a one, two, three or four\nfamily owner-occupied dwelling.\n 4. The commissioner of taxation and finance shall be the custodian of\nsuch special fund for reopened cases and shall invest any surplus monies\nthereof in securities which constitute legal investments for savings\nbanks under the laws of this state and in interest bearing certificates\nof deposit of a bank or trust company located and authorized to do\nbusiness in this state or of a national bank located in this state\nsecured by a pledge of direct obligations of the United States or of the\nstate of New York in an amount equal to the amount of such certificates\nof deposit, and may sell any of the securities or certificates of\ndeposit in which such fund is invested, if necessary for the proper\nadministration or in the best interest of such fund. Disbursements from\nsuch fund for compensation provided by this section shall be paid by the\ncommissioner of taxation and finance upon vouchers signed by the\nchairman.\n The commissioner of taxation and finance, as custodian of such fund,\nannually as soon as practicable after January first, shall furnish to\nthe chairman a statement of the fund, setting forth the balance of\nmonies in the said fund as of the beginning of the year, the income of\nthe fund, a summary of payments out of the fund on account of\ncompensation ordered to be paid by the board, medical and other expense,\nand all other charges against the fund, and setting forth the balance of\nthe fund remaining to its credit on December thirty-first. Such\nstatement shall be open to public inspection in the office of the\nchairman, and a copy thereof shall be transmitted by the chairman to the\nsuperintendent of financial services. The superintendent of financial\nservices may examine into the condition of such fund at any time on his\nown initiative or on request of the chairman or representative of the\nfund. He shall verify the receipts and disbursements of the fund, and\nshall ascertain the liability of the fund upon all cases in which awards\nof compensation have been made and charged against said fund and shall\nrender a report of such facts to the chairman. Such report shall also be\nopen to public inspection in the office of the chairman.\n 5. For applications by self-insured employers or insurance carriers\nfor transfer of liability for compensation to the fund for reopened\ncases under this section, received by the board prior to the first day\nof January, two thousand fourteen, the chair shall appoint an attorney\nin such proceedings to represent such fund in proceedings brought to\nenforce a claim against such fund. Such attorney may apply to the chair\nfor authority to hire such medical or other experts and to defray the\nexpense thereof and of such witnesses as are necessary to a proper\ndefense of the application within an amount in the discretion of the\nchair and, if authorized, it shall be a charge against the special fund\nprovided herein.\n 6. Notwithstanding any other provision of this chapter, no award of\ncompensation or death benefits shall be made against said special fund\nor against an employer or an insurance carrier where application\ntherefor is made after a lapse of eighteen years from the date of the\ninjury or death and also a lapse of eight years from the date of the\nlast payment of compensation.\n 7. For the purposes of this section the date of the last payment of\ncompensation shall be deemed to mean the date of actual payment of the\nlast installment of compensation previously awarded; provided, however,\nthat where the case is disposed of by the payment of a lump sum, the\ndate of last payment for the purpose of this section shall be considered\nas the date to which the amount paid in the lump sum settlement would\nextend if the award had been made on the date the lump sum payment was\napproved at the maximum compensation rate which is warranted by the\nemployee's earning capacity as determined by the board under section\nfifteen of this chapter.\n 8. The provisions of this section shall not apply to any open case\npending before the board on April twenty-fourth, nineteen hundred\nthirty-three or to any closed case in which an application for reopening\nwas received prior to such date, or to awards for deficiency\ncompensation made pursuant to section twenty-nine of this chapter, nor\nshall it apply during the pendency of an appeal provided for by section\ntwenty-three of this chapter; provided, however, that such provisions\nshall be retroactive in effect except as to payments into the special\nfund provided for an employer or his insurance carrier, and except as\notherwise herein provided.\n 9. (a) Notwithstanding any other provision of this chapter, every\nemployee who is receiving workers' compensation under this chapter for a\npermanent and total disability resulting from an accidental injury or\noccupational disablement which occurred prior to January first, nineteen\nhundred seventy-nine and every widow or widower who is receiving death\nbenefits under this chapter on account of the death of his or her spouse\nprior to January first, nineteen hundred seventy-nine shall receive\nsupplemental benefits upon application therefor to the board, which\nshall be payable in the first instance by the employer or its insurance\ncarrier in accordance with the provisions of this subdivision. These\nsupplemental benefits shall commence on July first, nineteen hundred\nninety and shall continue during the period of such permanent total\ndisability or entitlement to death benefits.\n (b) If such employee, widow or widower is receiving the statutory\nmaximum benefit in effect at the time of the accidental injury or death,\nthe supplemental benefit shall be an amount which, when added to the\nregular benefit established for the case, shall equal the maximum weekly\nbenefit in effect for a permanently totally disabled employee, widow or\nwidower whose claim arose on January first, nineteen hundred\nseventy-nine.\n (c) If such employee, widow or widower is receiving a weekly benefit\nwhich is less than the statutory maximum benefit which was in effect on\nthe date of the accidental injury or death, the supplemental benefit\nshall be an amount equal to the difference between the regular benefit\nbeing received and a percentage of the maximum benefit in effect on\nJanuary first, nineteen hundred seventy-nine, determined by multiplying\nthe latter benefit by a fraction, the numerator of which is the regular\nbenefit and the denominator of which is the statutory maximum benefit in\neffect at the time of the accidental injury or death.\n (d) In the event the supplemental benefit computed under this\nsubdivision amounts to less than five dollars, then the supplemental\nbenefit allowed shall be a minimum of five dollars, less the amount, if\nany, by which the combination of such supplemental benefit and the\nregular benefit exceeds the maximum weekly benefit in effect for a\npermanently totally disabled employee, widow or widower whose claim\narose on January first, nineteen hundred seventy-nine.\n (e) The employer or his insurance carrier paying the supplemental\nbenefits required under this subdivision shall claim reimbursement for\neach such case from the reopened cases fund under this section,\ncommencing one year from the date of the first such payment and annually\nthereafter while such supplemental payments continued, on a form\nprescribed by the chairman.\n (f) The special disability fund created under subdivision eight of\nsection fifteen and the reopened cases fund created under section\ntwenty-five-a and the aggregate trust fund created under section\ntwenty-seven of this chapter shall be deemed to be insurance carriers\nfor purposes of this subdivision, other than the payment of the\nassessment under the provisions of subdivision three of this section.\n (g) Whenever payment of the supplemental benefits prescribed hereunder\nis not made by the insurance carrier by reason of the insolvency of such\ninsurance carrier, or in the case of a self-insurer, by reason of the\ninsolvency of such self-insurer or the discontinuance of its operations,\nsuch payment shall be made directly out of the reopened cases fund under\nthis section by the commissioner of taxation and finance upon vouchers\napproved by the chairman of the workmen's compensation board.\n