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(a) Declaration of policy and legislative
intent. As a guide to the interpretation and application
of this subdivision, the policy and intent of this legislature
is declared to be as follows:
First: That every person in this state who works for
a living is entitled to reasonable opportunity to maintain
his independence and self-respect through self-support
even after he/she has been physically handicapped by
injury or disease;
Second: That any plan which will reasonably,
equitably and practically operate to break down hindrances
and remove obstacles to the employment of partially
disabled persons honorably discharged from our armed
forces, or any other physically handicapped persons,
is of vital importance to the state and its people and
is of concern to this legislature;
Third: That it is the considered judgment of this legislature
that the system embodied in this subdivision, which
makes a logical and equitable adjustment of the liability
under the workers' compensation law, which an employer
must assume in hiring employees, constitutes a practical
and reasonable approach to a solution of the problem
for the employment of physically handicapped persons.
Moreover, because of the insidious nature of slowly
developing diseases such as silicosis and other dust
diseases and because of the reluctance on the part of
employers to employ persons previously exposed to silica
or other harmful dust, means should also be provided
whereby employers will be encouraged to employ and to
continue the employment of such persons, by apportioning
liability fairly between the employer and industry as
a whole without at the same time removing any incentive
for the prevention of harmful dust diseases.
(b) Definition. As used in this subdivision. "permanent
physical impairment" means any permanent condition
due to previous accident or disease or any congenital
condition which is or is likely to be a hindrance or
obstacle to employment.
(c) Permanent total disability after permanent partial
disability.
Notwithstanding the provisions of paragraph (d) of this
subdivision, if an employee who has previously incurred
permanent partial disability through the loss of one
hand, one arm, one foot, one leg, or one eye, incurs
permanent total disability through the loss of another
member or organ, he/she shall be paid, in addition to
the compensation for permanent partial disability provided
in this section and after the cessation of the payments
for the prescribed period of weeks special additional
compensation during the continuance of such total disability
to the amount of sixty-six and two-thirds per centum
of the average weekly wage earned by him/her at the
time the total permanent disability was incurred. If
such employee shall established an earning capacity
by employment he shall be paid during the period of
such employment, instead of the additional compensation
above provided, two-thirds of the difference between
his average weekly wages at the time the total disability
was incurred and his wage earning capacity as determined
by his actual earnings in such employment, subject to
the limitations in subdivision six of this section.
Such additional compensation, and expense as in this
subdivision provided, shall be paid out of the special
disability fund and in the manner as hereinafter in
this subdivision provided.
(d) If an employee of an employer who has secured the
payment of compensation as required under the provisions
of section fifty of this chapter, who had a total or
partial loss or loss of use of one hand, one arm, one
foot, one leg or one eye or who has other permanent
physical impairment incurs a subsequent disability by
accident arising out of and in the course of his employment
or an occupational disease arising therefrom, resulting
in a permanent disability caused by both conditions
that is materially and substantially greater than that
which would have resulted from the subsequent injury
or occupational disease alone, the employer or his insurance
carrier shall in the first instance pay all awards of
compensation and all medical expense provided by this
chapter, but such employer or his insurance carrier,
except as specifically provided in paragraph(ee) of
this subdivision, shall be reimbursed from the special
disability fund created by this subdivision for all
compensation and medical benefits subsequent to those
payable for the first one hundred four weeks of disability
for claims where the date of accident or date disablement
occurred prior to August first, nineteen hundred ninety-four,
and two hundred sixty weeks of disability for claims
where the date of accident or date of date of disablement
occurred on or after August first, nineteen hundred
ninety-four, regardless of knowledge on the part of
the employer as the existence of such pre-existing permanent
physical impairment.
Notwithstanding anything to the contrary in this chapter,
there may be apportionment of liability for the special
disability fund under this subdivision within a single
claim by disposition between the fund, carriers, self-insurers
or employers.
. (1992, chgd. by chap. 545, eff. 7/24/92.)
(e) If the subsequent injury of such an employee resulting
from an accident arising out of and in the course of
his employment or an occupational disease resulting
therefrom, as set forth in paragraph (d) of this subdivision,
shall result in the death of the employee and it shall
be determined that either the injury or death would
not have occurred except for such pre-existing permanent
physical impairment, the employer or his insurance carrier
shall in the first instance pay the funeral expenses
and the death benefits prescribed by this chapter, but
he or his insurance carrier, except as specifically
provided in paragraph (ee) of this subdivision, shall
be reimbursed from the special disability fund created
by this subdivision for all death benefits payable in
excess of one hundred four weeks of disability for claims
where the date of accident or date of disablement occurred
prior to August first, nineteen hundred ninety-four,
and two hundred sixty weeks of disability for claims
where the date of accident or date of disablement occurred
on or after August first, nineteen hundred ninety-four,
regardless of knowledge on the part of the employer
as to the existence of such pre-existing permanent physical
impairment.
(ee) If an employee of an employer who has secured the
payment of compensation as required under the provisions
of section fifty of this chapter is disabled from silicosis
or other dust disease, or in the event of death, death
was due to silicosis or other dust disease, and if such
an employee has been subject to an injurious exposure
in an employment of this chapter, the provisions of
this subdivision shall apply except as hereinafter stated;
and it shall not be required that the employee had,
either at the time of hiring or during the employment,
any previous physical condition or disability which
may result in such disability or death.
In all such cases the employer or his insurance carrier
shall in the first instance pay all awards of compensation
and all medical expense provided by this chapter; and
in the event of death, the employer or his insurance
carrier shall also in the first instance pay the funeral
expenses and the death benefits prescribed by this chapter;
but such employer or his insurance carrier shall be
reimbursed from the special disability fund created
by this subdivision for all compensation and medical
benefits subsequent to those payable for all the first
one hundred four weeks of disability for claims where
the date of accident or date of disablement occurred
prior to August first, nineteen hundred ninety-four,
and two hundred sixty weeks of disability for claims
where the date of accident or date of disablement occurred
on or after August first, nineteen hundred ninety-four,
and, in the event of death, the employer or his insurance
carrier shall be reimbursed from the disability fund
created by this subdivision for all death benefits payable
in excess of one hundred four weeks for claims where
the date of accident or date of disablement occurred
prior to August first, nineteen hundred ninety-four,
and two hundred sixty weeks for claims where the date
of accident or date of disablement occurred on or after
August first, nineteen hundred-four; provided, however,
that when total disability or death occurred after July
first, nineteen hundred forty-seven, and prior to July
first, nineteen hundred seventy-four, the employer or
his insurance carrier shall be reimbursed from the special
disability fund created by this subdivision for all
compensation and medical benefits including funeral
expenses and death benefits subsequent to those payable
for the first two hundred sixty weeks of disability
and death benefits combined; and further provided, however,
that in the event of death due to silicosis or other
dust disease on or after July first, nineteen hundred
forty-seven, of such an employee who shall have been
totally disabled from silicosis or other dust disease
prior to such date, the employer or his insurance carrier
shall be reimbursed from the special disability fund
created by this subdivision for death benefits subsequent
to those payable for the first one hundred four weeks.
The compensation of an employee who has heretofore been
found to be totally and permanently disabled from silicosis
or other dust disease and whose disablement occurred
prior to July first, nineteen hundred forty-seven, shall
be continued or resumed, as the case may be, after June
first, nineteen hundred fifty-one, and payments shall
be made during continuance of such disability at his/her
regular weekly rate, notwithstanding the fact that such
compensation is in excess of the maximum provided for
his/her case under former article four-a of this chapter;
but such compensation in excess of the maximum so provided
shall be paid from the special fund created by this
subdivision.
+(f) Any award under this subdivision shall be made
against the employer or his or her insurance carrier,
but if such employer or insurance carrier be entitled
to reimbursement as provided in this subdivision; notice
or claim of the right to such reimbursement shall be
filed with the board in writing prior to the final determination
that the resulting disability is permanent, but in no
case more than one hundred four weeks after the date
of disability or death or fifty-two weeks after the
date that a claim for compensation is filed with the
chair, whichever is later, or in the event of the reopening
of a case theretofore closed, no later than the determination
of permanency upon such reopening.
The employer or his or her insurance carrier shall in
the first instance make the payments of compensation
and medical expenses provided by this subdivision. Whenever
for any reason payments are not made by the employer
or his or her insurance carrier at any time after the
payments have been made for the first one hundred four
weeks for claims where the date of accident or date
of disablement occurred prior to August first, nineteen
hundred ninety-four, and two hundred sixty weeks for
claims where the date of accident or date of disablement
occurred on or after August first, nineteen hundred
ninety-four, the payments of subsequent compensation
and medical expenses shall be made out of the special
disability fund by the commissioner of taxation and
finance upon vouchers approved by the chair of the workers'
compensation board. In case any payments prior to the
expiration of the first one hundred four weeks for claims
where the date of accident or date of disablement occurred
prior to August first, nineteen hundred ninety-four,
and two hundred sixty weeks for claims where the date
of accident or date of disablement occurred on or after
August first, nineteen hundred ninety-four are not made
by the employer or his or her insurance carrier by reason
of the insolvency of such carrier, the payments until
the expiration of one hundred four weeks for claims
where the date of accident or date of disablement occurred
prior to August first, nineteen hundred ninety-four,
and two hundred sixty weeks for claims where the date
of accident or date of disablement occurred on or after
August first, nineteen hundred ninety-four shall be
made out of the stock workers' compensation security
find created by the provisions of section one hundred
of this chapter if the insolvent carrier be a stock
company, or out of the mutual workers' compensation
security fund created under the provisions of section
one hundred and nine-d of this chapter if the carrier
be a mutual company. If any such payments are not made
by an employer permitted to secure the payment of compensation
pursuant to the provisions of subdivision three of section
fifty of this chapter, the payments shall be made out
of the proceeds of the sale of any securities deposited
by the employer with the chair, upon vouchers approved
by the chair, until such payments have been made for
one hundred four weeks for claims where the date of
accident or date of disablement occurred prior to August
first, nineteen hundred ninety-four, and two hundred
sixty weeks for claims where the date of accident or
date of disablement occurred on or after August, nineteen
hundred ninety-four, from the date of disability, after
which date they shall be made out of the special disability
fund in the manner above provided.
In all cases in which awards have been made and charged
against the special funds or injuries have occurred,
which would require payments to be made in accordance
with the provisions of former subdivision eight of this
section as it existed immediately prior to the time
this subdivision, as hereby added, takes effect, the
compensation so awarded or that shall be awarded in
such cases shall continue to be paid out of the special
disability fund by the commissioner of taxation and
finance upon vouchers approved by the chair of the workers'
compensation board, as though this subdivision had not
been enacted.
+ (1990, chgd, by chap. 352, eff.8/1/90.)
(g) Upon the making of a determination that an employer
or insurance carrier is entitled to reimbursement from
the special disability fund in any case where the employer
or insurance carrier has made payment into the aggregate
trust fund, as provided in section twenty-seven of this
chapter, or where payment of compensation has been commuted
into one or more lump sum payments, the employer or
insurance carrier shall be reimbursed forthwith for
the sums paid in excess of those payable for one hundred
four weeks for claims where the date of accident or
date disablement occurred prior to August first, nineteen
hundred ninety-four, two hundred sixty weeks for claims
where the date of accident or date of disablement occurred
on or after August first, nineteen hundred ninety-four
or two hundred sixty weeks in a silicosis or other dust
disease case as otherwise provided in paragraph (ee)
of this subdivision, exclusive of administrative and
loading charges paid pursuant to section twenty-seven,
in accordance with the decision and order of the board.
In all other cases such employer or insurance carrier
shall, periodically every six months from the decision
and order of the board, be reimbursed from such special
disability fund for all compensation and medical expense
in accordance with the provisions of paragraph (f) of
this subdivision.
(h) Special disability fund. 3The fund heretofore maintained
and provided for by and pursuant to former subdivision
eight of this section, is hereby continued and shall
retain the liabilities heretofore charged or chargeable
thereto under the provisions of such former subdivision
eight of this section as it existed immediately prior
to the time this subdivision, as hereby added, takes
effect, and the liabilities chargeable thereto under
the provisions of former subdivision eight-a of this
section as added by chapter seven hundred forty-nine
of the laws of nineteen hundred forty-four and repealed
at the same time this subdivision, as hereby added,
takes effect, and payments therefrom on account of such
liabilities shall continue to be made as provided herein.
The said fund shall be known as the special disability
and shall be available only for the purposes stated
in this subdivision, and the assets thereof shall not
any time be appropriated or diverted to any other use
or purpose. The chair of the board shall, as soon as
practicable after April first, nineteen hundred forty-five,
asses upon and collect from each insurance carrier,
including the state insurance fund and any county, city,
town, village or other political subdivision failing
to secure compensation pursuant to subdivision one or
two of section fifty of this chapter, a sum equal to
one per centum of the total compensation paid by such
carrier in the year ending March thirty-first next preceding
the date of such assessment. As soon as practicable
after May first in the year nineteen hundred fifty-eight,
and annual thereafter as soon as practicable after January
first in each succeeding year, the chair of the board
shall assess upon and collect from all self-insurers,
the state insurance fund, and all insurance carriers,
a sum equal to one hundred fifty per centum of the total
disbursements made from the special disability fund
during the preceding calendar year, less the amount
of the net assets in such fund as of December thirty-first
of said preceding calendar year. Such sum shall be allocated
to (i) self-insurers and the state insurance fund based
upon the proportion that the total compensation payments
made by all self-insurers and the state insurance fund
bore to the total compensation payments made by all
self-insurers, the state insurance fund and all insurance
carriers and (ii) insurance carriers based upon the
proportion that the total compensation payments made
by all insurance carriers bore to the total compensation
payments by all self-insurers, the state insurance fund
and all insurance carriers during the fiscal year which
ended within said preceding calendar year. The portion
of such sum allocated to self-insurers and the state
insurance fund that shall be collected from each self-insurer
and the state insurance fund shall be a sum equal to
the proportion of the amount which the total compensation
payments of each such self-insurer or the state insurance
fund bore to the total compensation payments made by
all self-insurers and the state insurance fund during
the fiscal year which ended within said preceding calendar
year. The portion of such sum allocated to insurance
carrier shall be collected from each insurance carrier
shall be a sum equal to that proportion of the amount
which total premiums written by each such insurance
carrier bore to the total written premiums reported
by all insurance carriers during the fiscal year which
ended within said preceding calendar year. For the purposes
of this paragraph, "direct premiums written"
means gross premiums, including policy and membership
fees, less return premiums and premiums on polices*not
taken. An employer who has ceased to be a self-insurer
shall continue to be liable for any assessments into
said fund on account of any compensation payments made
by him or her on his or her account during such fiscal
year, and the security fund, created under the provisions
of section one hundred seven of this chapter, shall,
in the event of the insolvency of any insurance company,
be liable for any assessments that would have been made
against such company except for its insolvency. No assessment
shall be payable from the aggregate trust fund, created
under the provisions of section twenty-seven of this
article, but such fund shall continue to be liable for
all compensation that shall be payable under any award
or order of the board, the commuted value of which has
been paid into such fund. Such assessments when collected
shall be deposited with the commissioner of taxation
and finance for the benefits of such fund, Such assessments
shall not constitute an element of loss of the purpose
of establishing rates for workers' compensation insurance
but shall for the purpose of collection be treated as
separate costs by carriers. All insurance carriers and
the state insurance fund, shall collect such assessments
from their policyholders through a surcharge based on
premium in accordance with rules set forth by the New
York compensation insurance rating board, as approved
by the superintendent of insurance. Such surcharge shall
be considered as part of premium for purposes prescribed
by law including, but not limited to, computing premium
tax, reporting to the superintendent of insurance pursuant
to section ninety-nine of this chapter and section three
hundred seven of the insurance law, determining the
limitation of expenditures for the administration of
the state insurance fund pursuant to section eighty-eight
of this chapter and the cancellation by an insurance
carrier, including the state insurance fund, of a policy
for non-payment of premium. The provisions of this paragraph
not apply with respect to the policies containing coverage
pursuant to subsection (j) of section three thousand
four hundred twenty of the insurance law relating to
every policy providing comprehensive personal liability
insurance to a one, two, three or four family owner-occupied
dwelling. The state insurance fund shall, on or before
April first, nineteen hundred ninety-four, notify its
insureds that such assessments shall be, for the purpose
of recoupment, treated as separate costs for the purpose
of premiums billed on and after October first, nineteen
hundred ninety-four.
For the purposes of this paragraph, except as otherwise
provided, the term "insurance carrier" shall
include only stock corporations, mutual corporations
and reciprocal insurers authorized to transact the business
of workers' compensation insurance in this state and
the term "self-insurer" shall include any
employer or group of employers permitted to pay compensation
directly under the provisions of subdivision three,
three-a or four of section fifty of this chapter.
The commissioner of taxation and finance is hereby authorized
to receive and credit to such special disability fund
any sum or sums that may at any time be contributed
to the state of the United States of America under any
act of congress, or otherwise, to which the state may
be or become entitled by reason of any payments made
out of such fund.
The commissioner of taxation and finance shall be the
custodian of said fund and shall invest any surplus
or reserve moneys thereof in securities which constitute
legal investments for savings banks under the laws of
this state and in the 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 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 as provided
by this subdivision shall be made by the commissioner
of taxation and finance upon vouchers signed by the
chair of the board.
Back to Top
Section
14(6)
14(6). If the injured employee is concurrently
engaged in more than one employment at the time of injury,
the employee's average weekly wages shall be calculated
upon the basis of wages earned from all concurrent employments
covered under this chapter. The employer in whose employment
the employee was injured shall be liable for the benefits
that would have been payable if the employee had had
no other employment. Any additional benefits resulting
from the increase in average weekly wages due to the
employee's concurrent employments shall be payable in
the first instance by the employer in whose employment
the employee was injured and shall be reimbursed by
the special disability fund created under subdivision
eight of section fifteen of this article. The employer
in whose employment the employee was injured shall be
liable for all medical costs.
Back to Top
Section 25a
25a. 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 and 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 chairman 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. 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 such application.
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
the 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 chapter
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 chapter 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 chapter 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 chapter; 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 chapter shall be required. In addition to the assessments
made against all insurance carriers for the expenses
of administering the workmen's compensation law provided
for under the provisions of section one hundred and
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 in 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 date inclusive, and the sum of ten dollars for
each 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 to 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 total supplemental
benefits paid from such fund as reimbursement pursuant
to subdivision nine of this section during the calendar
year immediately preceding, and (4) a reserve equal
to ten percent of the sum of items (1) and (2). For
the purpose of accumulating funds for the payment of
supplemental benefits pursuant to subdivision nine of
this section, the chairman shall impose against all
carriers an assessment in the sum of five million dollars
to be collected in the respective proportions established
in the fiscal year commencing April first, nineteen
hundred sixty-eight, under the provisions of section
one hundred fifty-one of this chapter for each carrier,
Annually, as soon as practicable after January first
in each year, the chairman shall ascertain the condition
of the fund and whenever the assets shall fall below
the prescribed minimum as herein provided the chairman
shall assess and collect from all insurance carriers,
in the respective proportions established in the prior
fiscal year under the provisions of section one hundred
fifty-one of this chapter for each carrier for each
carrier, an amount sufficient to restore the fund to
the prescribed minimum. The chairman before making an
assessment as herein provided shall give thirty days'
notice to the representative of the fund, designated
pursuant to subdivision five of this section, that an
itemized statement of the condition of the fund is open
for his inspection. The superintendent of insurance
may examine into the condition of the fund at any time
on his own initiative or on request of the chairman
or representative of the fund.
3. Such assessment and the payments made into said fund
shall not constitute an element of loss for the purpose
of establishing rates for workers' compensation insurance
as provided in the insurance law but shall for the purpose
of recoupment be treated as separate costs by carriers.
Carriers shall assess such costs on their policyholders
in accordance with rules set forth by the New York compensation
insurance rating board, as approved by the superintendent
of insurance. 3(1993,chgd, by chap. 729, eff. 12/27/93.)
The provisions of this subdivision shall not apply with
respect to policies containing coverage pursuant to
subdivision four-a of section one hundred sixty-seven
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 deposit 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 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 insurance.
The superintendent of insurance 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 the public inspection in
the office if the chairman.
5. When an application for compensation is made under
this section, the chairman shall appoint a representative
such fund in such proceedings and insofar as practicable,
such representative shall be a person designated by
the employer originally liable for the payment of compensation,
or his insurance carrier, but whenever it shall appear
to the chairman that through any committee, board or
organization or representative of the interest of the
insurance carriers an attorney has be appointed to act
for and on behalf of such carriers generally to represent
such fund in any proceedings brought hereunder the chairman
shall designate such attorneys as the representative
of the fund in proceedings brought to enforce a claim
against such fund. Such representative may apply to
the chairman for authority to hire such medical or other
experts and to defray the expense thereof and of such
witnesses as are necessary to proper defense of the
application within an amount in the discretion of the
chairman 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 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 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 funds
provided for an employer 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 to 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 of 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 supplement benefit
shall be an amount which, when added to the regular
benefit established for the case, shall equal the maximum
weekly benefit in the 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 dollar,
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.
+(1990, chgd. by chap. 924, eff. 7/1/90.)
(e)The employer or his insurance carrier paying the
supplemental benefits required under this subdivision
shall claim reimbursement for each 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 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.
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