§ 27 — Depositing future payments in the aggregate trust fund

§ 27. Depositing future payments in the aggregate trust fund. 1. All\npayments made into the fund pursuant to the provisions of this section\nshall constitute an indivisible and aggregate trust fund except as\nhereinafter provided.\n 2. If an award under this chapter requires payment of death benefits\nor other compensation by an insurance carrier or employer in periodical\npayments, the board may, in its discretion, at any time, any provision\nof this chapter to the contrary notwithstanding, compute and permit or\nrequire to be paid into the aggregate trust fund an amount equal to the\npresent value of all unpaid death benefits or other compensation in\ncases in which awards are made for total permanent or permanent partial\ndisability for a period of one hundred and four weeks or more, for which\nliability exists, together with such additional sum as the board may\ndeem necessary for a proportionate payment of expenses of administering\nthe fund so created, including the cost of the actuarial computation by\nor on behalf of the board of the present value of the award, and for the\npurposes of this section such cases shall be known as discretionary type\ncases. If any such award made on or after July first, nineteen hundred\nthirty-five, requires payment for total permanent disability resulting\nfrom the loss of both hands, or both arms, or both feet, or both legs,\nor both eyes, or of any two thereof, or for permanent partial disability\nresulting from loss of an arm, leg, hand, foot or eye, or of death\nbenefits by an insurance carrier which is a stock corporation or mutual\nassociation, or if any such award made on or after July first, two\nthousand seven requires payment for permanent partial disability under\nparagraph w of subdivision three of section fifteen of this article by\nan insurance carrier which is a stock corporation or mutual association,\nwhich for the purposes of this section shall be known as mandatory type\ncases, the board shall immediately compute the present value thereof and\nrequire payment of such amount into the aggregate trust fund, together\nwith such additional sum as the board may deem necessary for a\nproportionate payment of expenses of administering such trust fund\nincluding the cost of the actuarial computation by or on behalf of the\nboard of the present value of the award provided, however, that where an\nemployer or his insurance carrier is found to be entitled to\nreimbursement from the special disability fund of subdivision eight of\nsection fifteen, the computation of the present value of the award and\nthe requirement for payment of such amount into the said trust fund\nshall not be mandatory and such cases shall be deemed to be\ndiscretionary type cases; further provided that where an employee\nentitled to compensation under this chapter be injured or killed by the\nnegligence or wrong of another not in the same employ, the computation\nof the present value and the requirement for payment of such amount into\nthe said trust fund shall be held in abeyance until (1) six months have\nelapsed from the award of compensation, or in any event not more than\none year after the date of the accident, if the injured employee, or in\ncase of death, his personal representatives, spouse, parents, dependents\nor next of kin, or anyone otherwise entitled to recover damages at\ncommon law or otherwise, on account of such injury or death, have failed\nto commence such action, (2) the termination of any such action brought\nby the injured employee, or in case of death, his personal\nrepresentatives, spouse, parents, dependents or next of kin, or anyone\notherwise entitled to recover damages, at common law or otherwise, on\naccount of such injury or death, under the provisions of section\ntwenty-nine of this article.\n 3. Upon payment by an employer or insurance carrier into the aggregate\ntrust fund of an amount equal to the present value of all unpaid death\nbenefits or other compensation under any such award together with such\nadditional sum as the board may deem necessary for a proportionate\npayment of expenses of administering such trust fund including the cost\nof the actuarial computation by or on behalf of the board of the present\nvalue of the award, such employer or insurance carrier shall be\ndischarged from any further liability for payment of such death benefits\nor other compensation, and payment of the same as provided by this\nchapter shall be assumed by the fund so created.\n 4. In the event of a review or appeal of any such award the value of\nwhich has not been paid into the aggregate trust fund, if the amount of\naward is modified or changed, the employer or insurance carrier shall\npay directly to the claimant compensation due to the date as of which\nthe present value of future benefits is payable into such fund, and to\nthe said fund the present value of future benefits, but if the original\naward is affirmed, the employer or insurance carrier shall pay to such\nfund the present value of the award computed as of the effective date of\nthe original award and simple interest on such amount at the industry\nstandard rate, as determined by the superintendent of financial services\nby regulation, computed from the date of the original award to the date\nthat payment is made into such fund, plus simple interest at the rate\nprovided in section five thousand four of the civil practice law and\nrules, on past due payments of compensation to the date of the\naffirmance of such award, which past due payment and interest shall be\nmade directly to the claimant. The foregoing provision shall apply in\nthe event of such review or appeal regardless of whether the widow or\nwidower or other parties in interest have died or the widow or widower\nremarried subsequent to the date as of which the present value of the\noriginal award was computed. If any award, the present value of which\nhas been paid into the aggregate trust fund, is subsequently modified or\nchanged by the board for any reason other than because of subsequent\ndeath or remarriage, the amount equal to the present value of the unpaid\ndeath benefits or other compensation at the effective date of such\nmodification or change shall be computed on the basis both of the\noriginal award and of the modified or changed award. If such amount is\ngreater on the basis of the original award, the difference shall be paid\nby said trust fund to the employer or insurance carrier minus the cost,\nif any, of the actuarial computation made by or on behalf of the board.\nIf such amount is greater on the basis of the modified or changed award,\nthe difference shall be paid to said trust fund by such employer or\ninsurance carrier in addition to the cost, if any, of the actuarial\ncomputation made by or on behalf of the board. In the case of an\naccident, occurring on or subsequent to July first, nineteen hundred\nthirty-nine, where the present value of an award for permanent total or\npermanent partial disability other than award for a definite number of\nweeks has been paid into the aggregate trust fund, if an award is made\nfor death resulting from the injury causing the said disability, the\nemployer or insurance carrier which paid the present value of said\ndisability award into such fund shall be entitled to the difference\nbetween the amount paid into such fund and the sum disbursed from such\nfund to the injured employee prior to his or her death, plus simple\ninterest on such difference at the industry standard rate. In the case\nof an accident occurring on or subsequent to July first, nineteen\nhundred thirty-nine, where the present value of an award for permanent\npartial disability for a definite number of weeks has been paid into the\naggregate trust fund, if the injured employee dies prior to the end of\nsuch definite number of weeks, the employer or insurance carrier which\nmade the said payment into such fund shall be entitled to the present\nvalue of the unexpended disability benefits not payable to beneficiaries\ncomputed on the basis of annuities certain with interest at the industry\nstandard rate, minus however the cost, if any, of the actuarial\ncomputation made by or on behalf of the board. In the case of a claim\nfor the death of an employee resulting from an accident occurring on or\nsubsequent to January first, two thousand one, the present value of an\naward paid into the aggregate trust fund shall be calculated based on\nthe assumption that any child while under the age of twenty-three years\nwill be enrolled and attending as a full time student in an accredited\neducational institution and would thereby be entitled to benefits for\nall periods while under the age of twenty-three years. After all such\nchildren reach the age of twenty-three, the aggregate trust fund shall\nrefund to the carrier which paid such present value into such fund the\nportion of such present value representing benefits for which such\nchildren were not actually entitled because they were not enrolled and\nattending as a full time student in an accredited educational\ninstitution plus simple interest on such difference at the industry\nstandard rate.\n 5. All computations made by the board shall be upon the basis of the\nsurvivorship annuitants table of mortality, the remarriage tables of the\nDutch Royal Insurance Institution and interest at three and one-half per\ncentum per annum on claims based on accidents occurring up to and\nincluding June thirtieth, nineteen hundred thirty-nine, at three per\ncentum per annum on claims based on accidents occurring from July first,\nnineteen hundred thirty-nine up to and including August thirty-first,\nnineteen hundred eighty-three, at six per centum per annum on claims\nbased on accidents occurring from September first, nineteen hundred\neighty-three up to and including December thirty-first, two thousand and\nat the industry standard rate on claims based on accidents occurring\nthereafter, except (a) that computations of present values of death\nbenefits required to be paid into the aggregate trust fund by an\ninsurance carrier which is a stock corporation or a mutual association\nshall be based, in the case of a dependent parent, grandparent, blind or\nphysically disabled child or spouse, upon said table of mortality\ndisregarding possible change in or termination of dependency, with\ninterest at three and one-half per centum per annum on claims based on\naccidents occurring up to and including June thirtieth, nineteen hundred\nthirty-nine, at three per centum per annum on claims based on accidents\noccurring from July first, nineteen hundred thirty-nine up to and\nincluding August thirty-first, nineteen hundred eighty-three, at six per\ncentum per annum on claims based on accidents occurring from September\nfirst, nineteen hundred eighty-three up to and including December\nthirty-first, two thousand and at the industry standard rate on claims\nbased on accidents occurring thereafter and (b) that computations of\npresent values of permanent partial disability benefits awarded for a\ndefinite number of weeks shall be on the basis of annuities certain with\ninterest at three and one-half per centum per annum on claims based on\naccidents occurring up to and including June thirtieth, nineteen hundred\nthirty-nine, at three per centum per annum on claims based on accidents\noccurring from July first, nineteen hundred thirty-nine up to and\nincluding August thirty-first, nineteen hundred eighty-three, at six per\ncentum per annum on claims based on accidents occurring from September\nfirst, nineteen hundred eighty-three up to and including December\nthirty-first, two thousand and at the industry standard rate on claims\nbased on accidents occurring thereafter.\n 6. Such aggregate trust fund shall be kept separate and apart from all\nother moneys of the state insurance fund, and shall not be liable for\nany losses or expenses of administration of the state insurance fund\nother than the expenses involved in the administration of such trust\nfund including the cost, if any, of the actuarial computations made on\nbehalf of the board, nor shall the state insurance fund be charged with\nthe losses or expenses of the aggregate trust fund beyond the amount of\nsuch trust fund. Any portion of such aggregate trust fund may, by order\nof the commissioners of the state insurance fund, approved by the\nsuperintendent of financial services, be invested in or loaned on the\npledge of the same securities as provided in section eighty-seven of\nthis chapter for the investment of the state insurance fund, and the\ncommissioners may, upon like approval of the superintendent of financial\nservices, also sell any such securities. Any securities belonging to the\naggregate trust fund may be loaned by the commissioners of the state\ninsurance fund, with the approval of the superintendent of financial\nservices, under a security loan agreement as provided by section\neighty-seven of this chapter for securities belonging to the state\ninsurance fund.\n 7. For the purpose of securing the solvency of the aggregate trust\nfund, there shall be required, in addition to the payments hereinbefore\nprovided for, a payment on each award, as follows:\n (a) In the mandatory type cases based on an accident occurring on or\nsubsequent to July first, nineteen hundred forty-one up to and including\nJune thirtieth, nineteen hundred forty-three an amount equal to six per\ncentum of the present value of each such case paid into such fund;\n (b) In the mandatory type cases based on an accident occurring on or\nsubsequent to July first, nineteen hundred forty-three an amount equal\nto ten per centum of the present value of each such case paid into such\nfund;\n (c) In the discretionary type cases based on an accident occurring up\nto and including June thirtieth, nineteen hundred thirty-nine an amount\nequal to sixteen per centum of the present value of each such case paid\ninto such fund;\n (d) In the discretionary type cases based on an accident occurring on\nor subsequent to July first, nineteen hundred thirty-nine an amount\nequal to ten per centum of the present value of each such case paid into\nsuch fund.\n Such additional payments shall be required until the surplus of the\nfund equals or exceeds one per centum of the total outstanding loss\nreserves as shown by three successive annual reports of the fund to the\nsuperintendent of financial services and such additional payment shall\nbe required as a payment upon each award based on an accident occurring\nprior to July first next succeeding the third such annual report, but\nnot as a payment upon any award based on an accident occurring on or\nafter said July first; provided, however, that if and when the surplus\nof the fund as shown by any annual report thereafter shall be less than\none per centum of the total outstanding loss reserves, then the\nadditional payments as provided in paragraphs (a), (b), (c) and (d) of\nthis subdivision shall be resumed and shall be payable upon any award\nbased on an accident occurring on or after July first next succeeding\nthe close of the year for which such annual report is made. Thereafter,\nthe suspension or resumption of additional payments as required by this\nsubdivision shall be governed by the foregoing provisions. Such loss\nreserves shall be computed based upon the tables specified in\nsubdivision five of this section and interest at a standard to be\ndetermined by the superintendent of financial services by regulation.\n 8. In the case of a claim concerning which the aggregate trust fund\nenters a waiver agreement pursuant to section thirty-two of this\narticle, the insurance carrier, as defined in subdivision twelve of\nsection two of this chapter, which paid the present value of the award\nfor such claim, shall not be entitled to a refund of any portion of the\npresent value of such award.\n