New York Workers' Compensation Section 15 - Schedule In Case Of Disability.

15. Schedule in case of disability. The following schedule of compensation is hereby established:

1. Permanent total disability. In case of total disability adjudged to be permanent sixty-six and two-thirds per centum of the average weekly wages shall be paid to the employee during the continuance of such total disability. Loss of both hands, or both arms, or both feet, or both legs, or both eyes, or of any two thereof shall, in the absence of conclusive proof to the contrary, constitute permanent total disability. In all other cases permanent total disability shall be determined in accordance with the facts. Notwithstanding any other provision of this chapter, an injured employee disabled due to the loss or total loss of use of both eyes, or both hands, or both arms, or both feet, or both legs, or of any two thereof shall not suffer any diminution of his compensation by engaging in business or employment provided his earnings or wages, when combined with his compensation, shall not be in excess of the wage base on which the maximum weekly compensation benefit is computed under the law in effect at time of such earning; further provided, that if the combination exceeds such wage base, the compensation shall be diminished to an amount which, together with his earnings or wages, shall equal the wage base; and further provided that the application of this subdivision shall not result in reduction of compensation which an injured employee who is disabled due to the loss or total loss of use of both eyes, or both hands, or both arms, or both feet, or both legs or of any two thereof, would otherwise be entitled to under any other provision of this section.

2. Temporary total disability. In case of temporary total disability, sixty-six and two-thirds per centum of the average weekly wages shall be paid to the employee during the continuance thereof, except as otherwise provided in this chapter.

3. Permanent partial disability. In case of disability partial in character but permanent in quality the compensation shall be sixty-six and two-thirds per centum of the average weekly wages and shall be paid to the employee for the period named in this subdivision, as follows:

Number of Member lost weeks' compensation a. Arm ............................................................. 312 b. Leg ............................................................. 288 c. Hand ............................................................ 244 d. Foot ............................................................ 205 e. eye ............................................................. 160 f. Thumb ............................................................ 75 g. First finger ..................................................... 46 h. Great toe ........................................................ 38 i. Second finger .................................................... 30 j. Third finger ..................................................... 25 k. Toe other than great toe ......................................... 16 l. Fourth finger .................................................... 15

m. Loss of hearing. Compensation for the complete loss of the hearing of one ear, for sixty weeks, for the loss of hearing of both ears, for one hundred and fifty weeks.

n. Phalanges. Compensation for the loss of more than one phalange of a digit shall be the same as for loss of the entire digit. Compensation for loss of the first phalange shall be one-half of the compensation for loss of the entire digit.

o. Amputated arm or leg. Compensation for an arm or a leg, if amputated at or above the wrist or ankle, shall be for the proportionate loss of the arm or leg.

p. Binocular vision or per centum of vision. Compensation for loss of binocular vision or for eighty per centum or more of the vision of an eye shall be the same as for loss of the eye.

q. Two or more digits. Compensation for loss or loss of use of two or more digits, or one or more phalanges of two or more digits, of a hand or foot may be proportioned to the loss of use of the hand or foot occasioned thereby but shall not exceed the compensation for loss of a hand or foot.

r. Total loss of use. Compensation for permanent total loss of use of a member shall be the same as for loss of the member.

s. Partial loss or partial loss of use. Compensation for permanent partial loss or loss of use of a member may be for proportionate loss or loss of use of the member. Compensation for permanent partial loss or loss of use of an eye shall be awarded on the basis of uncorrected loss of vision or corrected loss of vision resulting from an injury whichever is the greater.

t. Disfigurement. 1. The board may award proper and equitable compensation for serious facial or head disfigurement, not to exceed twenty thousand dollars, including a disfigurement continuous in length which is partially in the facial area and also extends into the neck region as described in paragraph two hereof.

2. The board, if in its opinion the earning capacity of an employee has been or may in the future be impaired, may award compensation for any serious disfigurement in the region above the sterno clavicular articulations anterior to and including the region of the sterno cleido mastoid muscles on either side, but no award under subdivisions one and two shall, in the aggregate, exceed twenty thousand dollars.

3. Notwithstanding any other provision hereof, two or more serious disfigurements, not continuous in length, resulting from the same injury, if partially in the facial area and partially in the neck region as described in paragraph two hereof, shall be deemed to be a facial disfigurement.

u. Total or partial loss or loss of use of more than one member or parts of members. In any case in which there shall be a loss or loss of use of more than one member or parts of more than one member set forth in paragraphs a through t, inclusive, of this subdivision, but not amounting to permanent total disability, the board shall award compensation for the loss or loss of use of each such member or part thereof, which awards shall be fully payable in one lump sum upon the request of the injured employee.

v. Additional compensation for impairment of wage earning capacity in certain permanent partial disabilities. Notwithstanding any other provision of this subdivision, additional compensation shall be payable for impairment of wage earning capacity for any period after the termination of an award under paragraphs a, b, c, or d, of this subdivision for the loss or loss of use of fifty per centum or more of a member, provided such impairment of earning capacity shall be due solely thereto. Such additional compensation shall be determined in accordance with paragraph w of this subdivision. The additional compensation shall be reduced by fifty per centum of any amount of disability benefits which the disabled employee is receiving or entitled to receive for the same period under the social security act, and shall cease on the date the disabled employee receives or is entitled to receive old-age insurance benefits under the social security act. As soon as practicable after the injury, the worker shall be required to participate in a board approved rehabilitation program; or shall have demonstrated cooperation with efforts to institute such a board approved program and shall have been determined by the board not to be a feasible candidate for rehabilitation; such rehabilitation shall constitute treatment and care as provided in this chapter.

w. Other cases. In all other cases of permanent partial disability, the compensation shall be sixty-six and two-thirds percent of the difference between the injured employee's average weekly wages and his or her wage-earning capacity thereafter in the same employment or otherwise. Compensation under this paragraph shall be payable during the continuance of such permanent partial disability, but subject to reconsideration of the degree of such impairment by the board on its own motion or upon application of any party in interest however, all compensation payable under this paragraph shall not exceed (i) five hundred twenty-five weeks in cases in which the loss of wage-earning capacity is greater than ninety-five percent; (ii) five hundred weeks in cases in which the loss of wage-earning capacity is greater than ninety percent but not more than ninety-five percent; (iii) four hundred seventy-five weeks in cases in which the loss of wage-earning capacity is greater than eighty-five percent but not more than ninety percent; (iv) four hundred fifty weeks in cases in which the loss of wage-earning capacity is greater than eighty percent but not more than eighty-five percent; (v) four hundred twenty-five weeks in cases in which the loss of wage-earning capacity is greater than seventy-five percent but not more than eighty percent; (vi) four hundred weeks in cases in which the loss of wage-earning capacity is greater than seventy percent but not more than seventy-five percent; (vii) three hundred seventy-five weeks in cases in which the loss of wage-earning capacity is greater than sixty percent but not more than seventy percent; (viii) three hundred fifty weeks in cases in which the loss of wage-earning capacity is greater than fifty percent but not more than sixty percent; (ix) three hundred weeks in cases in which the loss of wage-earning capacity is greater than forty percent but not more than fifty percent; (x) two hundred seventy-five weeks in cases in which the loss of wage-earning capacity is greater than thirty percent but not more than forty percent; (xi) two hundred fifty weeks in cases in which the loss of wage-earning capacity is greater than fifteen percent but not more than thirty percent; and (xii) two hundred twenty-five weeks in cases in which the loss of wage-earning capacity is fifteen percent or less. For those claimants classified as permanently partially disabled who no longer receive indemnity payments because they have surpassed their number of maximum benefit weeks, the following provisions will apply:

(1) There will be a presumption that medical services shall continue notwithstanding the completion of the time period for compensation set forth in this section and the burden of going forward and the burden of proof will lie with the carrier, self-insured employer or state insurance fund in any application before the board to discontinue or suspend such services. Medical services will continue during the pendency of any such application and any appeals thereto.

(2) The board is directed to promulgate regulations that establish an independent review and appeal by an outside agent or entity of the board's choosing of any administrative law judge's determination to discontinue or suspend medical services before a final determination of the board.

4. Effect of award. An award made to a claimant under subdivision three shall in case of death arising from causes other than the injury be payable to and for the benefit of the persons following:

a. If there be a surviving spouse and no child of the deceased under the age of eighteen years, to such spouse.

b. If there be a surviving spouse and surviving child or children of the deceased under the age of eighteen years, one-half shall be payable to the surviving spouse and the other half to the surviving child or children.

The board may in its discretion require the appointment of a guardian for the purpose of receiving the compensation of the minor child. In the absence of such a requirement by the board the appointment for such a purpose shall not be necessary.

c. If there be a surviving child or children of the deceased under the age of eighteen years, but no surviving spouse then to such child or children.

d. If there be no surviving spouse and no surviving child or children of the deceased under the age of eighteen years, then to such dependent or dependents as defined in section sixteen of this chapter, as directed by the board; and if there be no such dependents, then to the estate of such deceased in an amount not exceeding reasonable funeral expenses as provided in subdivision one of section sixteen of this chapter, or, if there be no estate, to the person or persons paying the funeral expenses of such deceased in an amount not exceeding reasonable funeral expenses as provided in subdivision one of section sixteen of this chapter.

An award for disability may be made after the death of the injured employee.

4-a. Protracted temporary total disability in connection with permanent partial disability. In case of temporary total disability and permanent partial disability both resulting from the same injury, if the temporary total disability continues for a longer period than the number of weeks set forth in the following schedule, the period of temporary total disability in excess of such number of weeks shall be added to the compensation period provided in subdivision three of this section: Arm, thirty-two weeks; leg, forty weeks; hand, thirty-two weeks; foot, thirty-two weeks; ear, twenty-five weeks; eye, twenty weeks; thumb, twenty-four weeks; first finger, eighteen weeks; great toe, twelve weeks; second finger, twelve weeks; third finger, eight weeks; fourth finger, eight weeks; toe other than great toe, eight weeks.

In any case resulting in loss or partial loss of use of arm, leg, hand, foot, ear, eye, thumb, finger or toe, where the temporary total disability does not extend beyond the periods above mentioned for such injury, compensation shall be limited to the schedule contained in subdivision three.

5. Temporary partial disability. In case of temporary partial disability resulting in decrease of earning capacity, the compensation shall be two-thirds of the difference between the injured employee's average weekly wages before the accident and his wage earning capacity after the accident in the same or other employment.

5-a. Determination of wage earning capacity. The wage earning capacity of an injured employee in cases of partial disability shall be determined by his actual earnings, provided, however, that if he has no such actual earnings the board may in the interest of justice fix such wage earning capacity as shall be reasonable, but not in excess of seventy-five per centum of his former full time actual earnings, having due regard to the nature of his injury and his physical impairment.

5-b. Non-schedule adjustments. Notwithstanding any other provision of this chapter, in any case coming within the provisions of subdivisions three or five of this section, in which the right to compensation has been established and compensation has been paid for not less than three months, in which the continuance of disability and of future earning capacity cannot be ascertained with reasonable certainty, the board may, in the interest of justice, approve a non-schedule adjustment agreed to between the claimant and the employer or his insurance carrier. The board shall require, before approving any such agreement, that there be an examination of the claimant in accordance with section nineteen of this chapter, and such approval shall only be given when it is found that the adjustment is fair and in the best interest of the claimant. The board may, in such case, order all future compensation to be paid in one or more lump sums or periodically, and any such adjustment shall be regarded as a closing of the claim unless the board find upon proof that there has been a change in condition or in the degree of disability of claimant not found in the medical evidence and, therefore, not contemplated at the time of the adjustment.

6. Maximum and minimum compensation for disability. (a) Compensation for permanent or temporary total disability due to an accident or disablement resulting from an occupational disease that occurs, (1) on or after January first, nineteen hundred seventy-eight, shall not exceed one hundred twenty-five dollars per week, that occurs (2) on or after July first, nineteen hundred seventy-eight, shall not exceed one hundred eighty dollars per week, that occurs (3) on or after January first, nineteen hundred seventy-nine, shall not exceed two hundred fifteen dollars per week, that occurs (4) on or after July first, nineteen hundred eighty-three, shall not exceed two hundred fifty-five dollars per week, that occurs (5) on or after July first, nineteen hundred eighty-four, shall not exceed two hundred seventy-five dollars per week, that occurs (6) on or after July first, nineteen hundred eighty-five, shall not exceed three hundred dollars per week, that occurs (7) on or after July first, nineteen hundred ninety, shall not exceed three hundred forty dollars per week; and in the case of temporary total disability shall not be less than thirty dollars per week and in the case of permanent total disability shall not be less than twenty dollars per week except that if the employee's wages at the time of injury are less than thirty or twenty dollars per week respectively, he or she shall receive his or her full weekly wages. Compensation for permanent or temporary partial disability due to an accident or disablement resulting from an occupational disease that occurs (1) on or after January first, nineteen hundred seventy-eight, shall not exceed one hundred five dollars per week, that occurs (2) on or after July first, nineteen hundred eighty-three, shall not exceed one hundred twenty-five dollars per week, that occurs (3) on or after July first, nineteen hundred eighty-four, shall not exceed one hundred thirty-five dollars per week, that occurs (4) on or after July first, nineteen hundred eighty-five, shall not exceed one hundred fifty dollars per week, that occurs (5) on or after July first, nineteen hundred ninety, shall not exceed two hundred eighty dollars per week; nor be less than twenty dollars per week; except that if the employee's wages at the time of injury are less than twenty dollars per week, he or she shall receive his or her full weekly wages. In no event shall compensation when combined with decreased earnings or earning capacity exceed the amount of wages which the employee was receiving at the time the injury occurred. Compensation for permanent or temporary partial disability, or for permanent or temporary total disability due to an accident or disablement resulting from an occupational disease that occurs (1) on or after July first, nineteen hundred ninety-one and prior to July first, nineteen hundred ninety-two, shall not exceed three hundred fifty dollars per week; (2) on or after July first, nineteen hundred ninety-two, shall not exceed four hundred dollars per week; nor be less than forty dollars per week except that if the employee's wages at the time of injury are less than forty dollars per week, the employee shall receive his or her full wages. Compensation for permanent or temporary partial disability, or for permanent or temporary total disability due to an accident or disablement resulting from an occupational disease that occurs (1) on or after July first, two thousand seven shall not exceed five hundred dollars per week, (2) on or after July first, two thousand eight shall not exceed five hundred fifty dollars per week, (3) on or after July first, two thousand nine shall not exceed six hundred dollars per week, and (4) on or after July first, two thousand ten, and on or after July first of each succeeding year, shall not exceed two-thirds of the New York state average weekly wage for the year in which it is reported. Compensation for permanent or temporary partial disability, or for permanent or temporary total disability due to an accident or disablement resulting from an occupational disease that occurs on or after July first, two thousand seven shall not be less than one hundred dollars per week except that if the employee's wages at the time of injury are less than one hundred dollars per week, the employee shall receive his or her full wages. Compensation for permanent or temporary partial disability, or for permanent or temporary total disability due to an accident or disablement resulting from an occupational disease that occurs on or after May first, two thousand thirteen shall not be less than one hundred fifty dollars per week except that if the employee's wages at the time of injury are less than one hundred fifty dollars per week, the employee shall receive his or her full wages. In no event shall compensation when combined with decreased earnings or earning capacity exceed the amount of wages the employee was receiving at the time the injury occurred. Compensation for permanent or temporary partial disability, or for permanent or temporary total disability due to an accident or disablement resulting from an occupational disease or injury that occurred as a result of World Trade Center rescue activity by an employee of a private voluntary hospital, who passed a physical examination upon employment as a rescue worker that failed to reveal evidence of a condition that was the proximate cause of disablement or occupational disease or injury, shall not exceed three-quarters of a claimant's wage on September eleventh, two thousand one. In no event shall compensation when combined with decreased earnings or earning capacity exceed the amount of wages the employee was receiving on September eleventh, two thousand one.

(b) Compensation for temporary total disability due to an accident or disablement resulting from an occupational disease that occurs on or after July first, nineteen hundred seventy-four, and prior to July first, nineteen hundred seventy-eight, shall not exceed one hundred twenty-five dollars per week nor be less than thirty dollars per week; except that if the employee's wages at the time of injury are less than thirty dollars per week, he shall receive his full weekly wages. Compensation for permanent total disability or for permanent or temporary partial disability due to an accident or disablement resulting from an occupational disease that occurs on or after July first, nineteen hundred seventy-four, and prior to January first, nineteen hundred seventy-eight, shall not exceed ninety-five dollars per week; nor be less than twenty dollars per week; except that if the employee's wages at the time of injury are less than twenty dollars per week, he shall receive his full weekly wages. In no event shall compensation when combined with decreased earnings or earning capacity exceed the amount of wages which the employee was receiving at the time the injury occurred.

(c) Compensation for temporary total disability due to an accident or disablement resulting from an occupational disease that occurs on or after July first, nineteen hundred seventy and prior to July first, nineteen hundred seventy-four, shall not exceed ninety-five dollars per week nor be less than thirty dollars per week; except that if the employee's wages at the time of injury are less than thirty dollars per week, he shall receive his full weekly wages. Compensation for permanent total disability or for permanent or temporary partial disability due to an accident or disablement resulting from an occupational disease that occurs on or after July first, nineteen hundred seventy and prior to July first, nineteen hundred seventy-four, shall not exceed eighty dollars per week; nor be less than twenty dollars per week; except that if the employee's wages at the time of injury are less than twenty dollars per week, he shall receive his full weekly wages. In no event shall compensation when combined with decreased earnings or earning capacity exceed the amount of wages which the employee was receiving at the time the injury occurred.

(d) Compensation for temporary total disability due to an accident or disablement resulting from an occupational disease that occurs on or after July first, nineteen hundred sixty-eight, and prior to July first, nineteen hundred seventy, shall not exceed eighty-five dollars per week nor be less than thirty dollars per week; except that if the employee's wages at the time of injury are less than thirty dollars per week, he shall receive his full weekly wages. Compensation for permanent total disability or for permanent or temporary partial disability due to an accident or disablement resulting from an occupational disease that occurs on or after July first, nineteen hundred sixty-eight, and prior to July first, nineteen hundred seventy, shall not exceed seventy dollars per week; nor be less than twenty dollars per week; except that if the employee's wages at the time of injury are less than twenty dollars per week, he shall receive his full weekly wages. In no event shall compensation when combined with decreased earnings or earning capacity exceed the amount of wages which the employee was receiving at the time the injury occurred.

(e) Compensation for permanent or temporary partial disability, or for permanent or temporary total disability due to an accident or disablement resulting from an occupational disease that occurs on or after July first, nineteen hundred sixty-five, and prior to July first, nineteen hundred sixty-eight, shall not exceed sixty dollars per week; nor be less than twenty dollars per week; except that if the employee's wages at the time of injury are less than twenty dollars per week, he shall receive his full weekly wages. In no event shall compensation when combined with decreased earnings or earning capacity exceed the amount of wages which the employee was receiving at the time the injury occurred.

(f) Compensation for permanent or temporary partial disability, or for permanent or temporary total disability due to an accident or disablement resulting from an occupational disease that occurs on or after July first, nineteen hundred sixty-two and prior to July first nineteen hundred sixty-five, shall not exceed fifty-five dollars per week; nor be less than twenty dollars per week; except that if the employee's wages at the time of injury are less than twenty dollars per week, he shall receive his full weekly wages. In no event shall compensation when combined with decreased earnings or earning capacity exceed the amount of wages which the employee was receiving at the time the injury occurred.

(g) Compensation for permanent or temporary partial disability, or for permanent or temporary total disability due to an accident or disablement resulting from an occupational disease that occurs on or after July first, nineteen hundred sixty and prior to July first, nineteen hundred sixty-two, shall not exceed fifty dollars per week; nor be less than twenty dollars per week, except that if the employee's wages at the time of injury are less than twenty dollars per week, he shall receive his full weekly wages. In no event shall compensation when combined with decreased earnings or earning capacity exceed the amount of wages which the employee was receiving at the time the injury occurred.

(h) Compensation for permanent or temporary partial disability, or for permanent or temporary total disability due to an accident or disablement resulting from an occupational disease that occurs on or after July first, nineteen hundred fifty-eight and prior to July first, nineteen hundred sixty, shall not exceed forty-five dollars per week; nor, except in cases of permanent total disability, be less than twenty dollars per week; except that if the employee's wages at the time of injury are less than twenty dollars per week, he shall receive his full weekly wages; further provided, that in each case of permanent total disability minimum compensation shall not be less than twenty dollars per week, except that where the employee's wages at the time of injury are less than twenty dollars per week he shall receive his full weekly wages. In no event shall compensation when combined with decreased earnings or earning capacity exceed the amount of wages which the employee was receiving at the time the injury occurred.

(i) Compensation for permanent or temporary partial disability, or for permanent or temporary total disability due to an accident or disablement resulting from an occupational disease that occurs on or after July first, nineteen hundred fifty-four and prior to July first, nineteen hundred fifty-eight, shall not exceed thirty-six dollars per week; nor, except in cases of permanent total disability, be less than twelve dollars per week; except that if the employee's wages at the time of injury are less than twelve dollars per week, he shall receive his full weekly wages; further provided, that in each case of permanent total disability minimum compensation shall not be less than fifteen dollars per week, except that where the employee's wages at the time of injury are less than fifteen dollars per week he shall receive his full weekly wages. In no event shall compensation when combined with decreased earnings or earning capacity exceed the amount of wages which the employee was receiving at the time the injury occurred.

(j) Compensation for permanent or temporary partial disability, or for permanent or temporary total disability due to an accident or disablement resulting from an occupational disease that occurs on or after July first, nineteen hundred forty-eight and prior to July first, nineteen hundred fifty-four, shall not exceed thirty-two dollars per week and compensation for permanent or temporary partial disability, or for permanent or temporary total disability due to an accident or disablement resulting from an occupational disease that occurs on or after June first, nineteen hundred forty-six, and prior to July first, nineteen hundred forty-eight, shall not exceed twenty-eight dollars per week; nor, except in cases of permanent total disability, be less than twelve dollars per week; except that if the employee's wages at the time of injury are less than twelve dollars per week, he shall receive his full weekly wages; further provided, that in each case of permanent total disability minimum compensation shall not be less than fifteen dollars per week, except that where the employee's wages at the time of injury are less than fifteen dollars per week, he shall receive his full weekly wages but in no event shall compensation when combined with decreased earnings or earning capacity exceed the amount of wages which the employee was receiving at the time the injury occurred; further provided, that compensation may be in excess of twenty-five dollars but shall not exceed twenty-eight dollars per week for permanent or temporary total disability due to an accident or disablement resulting from an occupational disease that occurred on or after June first, nineteen hundred forty-four, and prior to July first, nineteen hundred forty-eight, and in each case of temporary total disability minimum compensation shall not be less than twelve dollars per week, except that where the employee's wages at the time of injury are less than twelve dollars per week, he shall receive his full weekly wages; and further provided that, because of existing conditions due to the war compensation for permanent or temporary total disability may be in excess of twenty-five dollars but shall not exceed twenty-eight dollars per week for any period of disability arising out of claims accruing during the three year period commencing June first, nineteen hundred forty-four.

6-a. Reclassification of disabilities. Subject to the limitations set forth in sections twenty-five-a and one hundred twenty-three of this chapter, the board may, at any time, without regard to the date of accident, upon its own motion, or on application of any party in interest, reclassify a disability upon proof that there has been a change in condition, or that the previous classification was erroneous and not in the interest of justice.

7. Previous disability. The fact that an employee has suffered previous disability or received compensation therefor shall not preclude him from compensation for a later injury nor preclude compensation for death resulting therefrom; but in determining compensation for the later injury or death his average weekly wages shall be such sum as will reasonably represent his earning capacity at the time of the later injury, provided, however, that an employee who is suffering from a previous disability shall not receive compensation for a later injury in excess of the compensation allowed for such injury when considered by itself and not in conjunction with the previous disability except as hereinafter provided in subdivision eight of this section.

8. Disability following previous permanent physical impairment. (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 establish 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 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.

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.

(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 defined under paragraph twenty-nine of subdivision two of section three 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 subject to the limitations of subparagraphs two and three of paragraph (h) of this subdivision 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 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 special 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 ninety-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. In no event shall such a notice of claim be filed beyond the dates set forth in subparagraph two of paragraph (h) of this subdivision.

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 fund created by the provisions of section one hundred seven 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 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 first, 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 fund 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.

(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 of 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. (1) The 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 heretofore 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 fund and shall be available only for the purposes stated in this subdivision, and the assets thereof shall not at any time be appropriated or diverted to any other use or purpose.

(2) (A) No carrier or employer, or the state insurance fund, may file a claim for reimbursement from the special disability fund, for an injury or illness with a date of accident or date of disablement on or after July first, two thousand seven. No carrier or employer, or the state insurance fund, may file a claim for reimbursement from the special disability fund after July first, two thousand ten, and no written submissions or evidence in support of such a claim may be submitted after that date.

(B) All requests for reimbursement from the special disability fund with a date of injury or date of disablement prior to July first, two thousand seven as to which the board has determined that the special disability fund is liable must be submitted to the special disability fund by the later of (i) one year after the expense has been paid, or (ii) one year from the effective date of this paragraph.

(3) Effective the first day of January, two thousand fourteen, and annually thereafter, the chair of the board shall collect from all affected employers (A) a sum equal to one hundred fifty per centum of the total expected disbursements made from the special disability fund during the year (not including any disbursements made on account of anticipated liabilities or waiver agreements funded by bond proceeds and related earnings), less the estimated amount of the net assets in such fund expected as of December thirty-first and (B) a sum sufficient to cover debt service, and associated costs (the "debt service assessment") to be paid during the calendar year by the dormitory authority, as calculated in accordance with subparagraph four of this paragraph. Such assessments shall be included in the assessment rate established pursuant to subdivision two of section one hundred fifty-one of this chapter. Such assessments shall be deposited with the commissioner of taxation and finance and transferred to the benefit of such fund following payment of debt service and associated costs, if any, pursuant to section one hundred fifty-one of this chapter.

(4) The chair and the commissioner of taxation and finance are authorized and directed to enter into a financing agreement with the dormitory authority, to be known as the "special disability fund financing agreement." Such agreement shall set forth the process for calculating the annual debt service of the bonds issued by the dormitory authority and any other associated costs. For purposes of this section, "associated costs" may include a coverage factor, reserve fund requirements, all costs of any nature incurred by the dormitory authority in connection with the special disability fund financing agreement or pursuant thereto, the operating costs of the waiver agreement management office, the costs of any independent audits undertaken under this section, and any other costs for the implementation of this subparagraph and the issuance of bonds by the dormitory authority, including interest rate exchange payments, rebate payments, liquidity fees, credit provider fees, fiduciary fees, remarketing, dealer, auction agent and related fees and other similar bond-related expenses, unless otherwise funded. By January first of each year, the dormitory authority shall provide to the chair the calculation of the amount expected to be paid by the dormitory authority in debt service and associated costs for purposes of calculating the debt service assessment as set forth in subparagraph three of this paragraph. All monies received on account of any assessment under subparagraph three of this paragraph and this subparagraph shall be applied in accordance with this subparagraph and in accordance with the financing agreement until the financial obligations of the dormitory authority in respect to its contract with its bondholders are met and all associated costs payable to the dormitory authority have been paid, notwithstanding any other provision of law respecting secured transactions. This provision may be included by the dormitory authority in any contract of the dormitory authority with its bondholders.

The special disability fund financing agreement may restrict disbursements, investments, or rebates, and may prescribe a system of accounts applicable to the special disability fund, including custody of an account with a trust indenture trustee that may be prescribed by the dormitory authority as part of its contract with the bondholders. For purposes of this paragraph, the term "bonds" shall include notes issued in anticipation of the issuance of bonds, or notes issued pursuant to a commercial paper program.

(5) 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 by 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.

(6) The commissioner of taxation and finance shall be the custodian of said fund and, unless otherwise provided for in the special disability fund financing agreement, 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 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 as provided by this subdivision shall be made by the commissioner of taxation and finance upon vouchers signed by the chair of the board unless the financing agreement provides for some other means of authorizing such disbursements that is no less protective of the fund.

The commissioner of taxation and finance, as custodian of such fund, annually as soon as practicable after January first, shall furnish to the chair of the workers' compensation board a statement of the fund, setting forth the balance of moneys in the said fund as of the beginning of the calendar year, the income of the fund, the summary of payments out of the fund on account of reimbursements and other charges ordered to be paid by the board, 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 secretary of the board. The chair, not less than ninety days after the issuance of the dormitory authority's annual audit, shall furnish to the temporary president of the senate and the speaker of the assembly the following reports on the special disability fund: a revenue and operating expense statement; a financing plan; a report concerning the assets and liabilities; the number of waiver agreements entered into by the waiver agreement management office; the number of claimants remaining in the fund; the estimated current unfunded liability of the fund with respect to such claims; and a debt issuance report including but not limited to (i) pledged assessment revenue and securitization coverage, (ii) debt service maturities, (iii) interest rate exchange or similar agreements, and (iv) financing and issuance costs.

The commissioner of taxation and finance may establish within the special disability fund such accounts and sub-accounts as he or she deems useful for the operation of the fund, or as necessary to segregate moneys within the fund, subject to the provisions of the financing agreement. The waiver agreement management office, as defined in section thirty-two of this article, shall make application to the chair on a quarterly basis for any administrative costs incurred by the office.

(i) When an application for apportionment of compensation is made under this subdivision, the chair of the workers' compensation board shall appoint an attorney to represent and defend such fund in such proceedings. Such attorney shall thereafter be given notice of all proceedings involving the rights or obligations of such fund. Such attorney may apply to the chair of the board for authority to hire such medical and other experts and to defray the expense thereof and of such witnesses as may be necessary to a proper defense of any claim, within an amount in the discretion of the chair and, if authorized, such amount shall be a charge against such special disability fund.

The provisions of this chapter with respect to procedure, except as may be otherwise provided in this subdivision, and the right of appeal shall be preserved to the claimant and to the employer or his insurance carrier and to such fund through its attorney as herein provided.

(j) The provisions of this subdivision, except as herein otherwise provided, shall not be applicable to any case where the accident causing the subsequent injury or death or the disablement or death from a subsequent occupational disease shall have occurred prior to the time this subdivision, as hereby added, takes effect, provided, however, that any rights that have accrued under former subdivision eight or eight-a of this section prior to the time this subdivision, as hereby added, takes effect shall continue to inure to the benefit of any persons affected thereby as though such subdivisions had not been repealed.

(k) The additional compensation required to be paid by an employer in the case of the injury of a minor illegally employed, in accordance with the provisions of subdivisions one and two of section fourteen-a of this chapter, shall not be reimbursable under the provisions of this subdivision.

(l) Notwithstanding anything to the contrary in this subdivision, when an employer or carrier shall have paid additional benefits to an employee pursuant to subdivision six of section fourteen of this article as a result of the employee's increased average weekly wages from wages earned in concurrent employment, reimbursement for all such additional benefits shall be made to the employer or carrier from the special disability fund created by this subdivision. 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, nor shall it be required that the employee's disability be permanent in nature. Notice of the right to reimbursement shall be filed with the board in writing prior to the decision making an award, and reimbursement shall be made periodically, every six months from the decision of the board.

9. Expenses for rehabilitating injured employees. An employee, who as a result of injury is or may be expected to be totally or partially incapacitated for a remunerative occupation and who, under the direction of the state education department is being rendered fit to engage in a remunerative occupation, may receive additional compensation necessary for his rehabilitation, not more than thirty dollars per week of which may be expended for maintenance. Such expense and such of the administrative expenses of the state education department as are properly assignable to the expenses of rehabilitating employees entitled to compensation as a result of injuries under this chapter, shall be paid out of a special fund created in the following manner: The employer, or if insured, his insurance carrier, shall pay into the vocational rehabilitation fund for every case of injury causing death, in which there are no persons entitled to compensation, the sum of five hundred dollars where such injury occurred prior to July first, nineteen hundred sixty-three and the sum of one thousand dollars where such injury shall occur on or after July first, nineteen hundred sixty-three and the sum of two thousand dollars where such injury shall occur on or after September first, nineteen hundred seventy-eight. The commissioner of taxation and finance and the state comptroller shall be the joint custodians of this special fund and may invest any surplus moneys 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. He may also 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 interests of such fund. The provisions of this paragraph 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.

Disbursements from the vocational rehabilitation fund for the additional compensation provided for by this section shall be paid by the commissioner of taxation and finance on warrants drawn by the state comptroller upon vouchers signed by the commissioner of education or the deputy commissioner of education provided that the compensation claim number of an injured employee undergoing vocational rehabilitation has been verified by the chairman.

Disbursements from the vocational rehabilitation fund for administrative expenses of the state education department shall be paid by the commissioner of taxation and finance on warrants drawn by the state comptroller upon vouchers signed by the commissioner of education or the deputy commissioner of education.


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Last modified: September 11, 2016