N.Y. Workers' Compensation Law § 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.