25-a. Procedure and payment of compensation in certain claims; limitation of right to compensation. 1. Notwithstanding other provisions of this chapter, when an application for compensation is made by an employee or for death benefits in behalf of the dependents of a deceased employee, and the employer has secured the payment of compensation in accordance with section fifty of this chapter, (1) after a lapse of seven years from the date of the injury or death and claim for compensation previously has been disallowed or claim has been otherwise disposed of without an award of compensation, or (2) after a lapse of seven years from the date of the injury or death and also a lapse of three years from the date of the last payment of compensation, or (3) where death resulting from the injury shall occur after the time limited by the foregoing provisions of (1) or (2) shall have elapsed, subject to the provisions of section one hundred twenty-three of this chapter, testimony may be taken, either directly or through a referee and if an award is made it shall be against the special fund provided by this section. Such an application for compensation or death benefits must be made on a form prescribed by the chair for that purpose and must, if a change in condition is claimed, be accompanied by a verified medical or surgical report setting forth facts on which the board may order a hearing.
1-a. Any award which shall be made against such special fund after the effective date of this act upon such an application for compensation or death benefits shall not be retroactive for a period of disability or for death benefits longer than the two years immediately preceding the date of filing of such application. No application by a self-insured employer or an insurance carrier for transfer of liability of a claim to the fund for reopened cases shall be accepted by the board on or after the first day of January, two thousand fourteen except that the board may make a finding after such date pursuant to section twenty-three of this article upon a timely application for review.
2. Claims for further services or treatment rendered or supplies furnished as required by section thirteen hereof shall be paid from such fund when such service, treatment or supplies shall be authorized by the chairman. In cases where a surgical operation has previously been authorized by the board pursuant to the provisions of subdivision five of section thirteen-a of this chapter, no further authorization therefor by the chairman under this section shall be required. The provisions of this chapter with respect to procedure and the right to appeal shall be preserved to the claimant and to the employer originally liable for the payment of compensation and to such fund through its representative as hereinafter provided.
3. Any awards so made shall be payable out of the special fund heretofore created for such purpose, which fund is hereby continued and shall be known as the fund for reopened cases. The employer, or, if insured, his insurance carrier shall pay into such fund, or, in the case of awards made on or after July first, nineteen hundred sixty-nine, either into such fund or the uninsured employers' fund under section twenty-six-a of this article in accordance with the provisions thereof, for every case of injury causing death for which there are no persons entitled to compensation the sum of three hundred dollars where such injury occurred prior to July first, nineteen hundred forty and the sum of one thousand dollars where such injury shall occur on or after said date and prior to April first, nineteen hundred forty-five, and the sum of fifteen hundred dollars where such injury shall occur on or after April first, nineteen hundred forty-five and prior to September first, nineteen hundred seventy-eight and the sum of three thousand dollars where such injury shall occur on or after September first, nineteen hundred seventy-eight, and in each case of death resulting from injury sustained on or after July first, nineteen hundred forty and prior to September first, nineteen hundred seventy-eight, where there are persons entitled to compensation but the total amount of such compensation is less than two thousand dollars exclusive of funeral benefits, the employer, or, if insured, his insurance carrier, shall pay into such fund, or, in the case of awards made on or after July first, nineteen hundred sixty-nine and prior to September first, nineteen hundred seventy-eight, either into such fund or the uninsured employers' fund under section twenty-six-a of this article in accordance with the provisions thereof, the difference between the sum of two thousand dollars and the compensation, exclusive of funeral benefits, and in each case of death resulting from injury sustained on or after September first, nineteen hundred seventy-eight, the employer, or if insured, his insurance carrier shall pay into such fund or the uninsured employers' fund under section twenty-six-a of this article in accordance with the provisions thereof, the difference between the sum of five thousand dollars and the compensation, exclusive of funeral benefits actually paid to or for the dependents of the deceased employee together with any expense charge required by section twenty-seven of this article; provided, however, that where death shall occur subsequent to the periods limited by subdivision one of this section no payment into such special fund nor to the special fund provided by subdivision nine of section fifteen nor to the uninsured employers' fund provided by section twenty-six-a of this article shall be required. In addition to the assessments made against all insurance carriers for the expenses of administering this chapter provided for under the provisions of section one hundred fifty-one of this chapter, and the payments above provided, the employer, or, if insured, his insurance carrier, shall pay the sum of five dollars into said fund for each case in which an award is made pursuant to the provisions of paragraphs a to s inclusive of subdivision three of section fifteen of this chapter, by reason of injury sustained between July first, nineteen hundred forty and June thirtieth, nineteen hundred forty-two, both dates inclusive, and the sum of ten dollars for each such case by reason of injury sustained between July first, nineteen hundred forty-two and June thirtieth, nineteen hundred fifty, both dates inclusive, which payment shall be in addition to any payment of compensation to the injured employee as provided in this chapter.
There shall be maintained in the special fund at all times assets at least equal in value to the sum of (1) the value of awards charged against such fund, (2) the value of all claims that have been reopened by the board as a charge against such fund but as to which awards have not yet been made, (3) effective January first, nineteen hundred seventy-one, the value of total supplemental benefits to be paid from such fund as reimbursement pursuant to subdivision nine of this section, and (4) a reserve equal to ten per cent of the sum of items (1), (2) and (3) of this paragraph. Annually, as soon as practicable after January first in each year, the chair shall ascertain the condition of the fund and whenever the assets shall fall below the prescribed minimum as herein provided the chair shall collect an amount sufficient to restore the fund to the prescribed minimum. Commencing on the first of January, two thousand fourteen, the amount collected from all employers required to obtain workers' compensation coverage to maintain the financial integrity of the fund may be paid over a period of time at the discretion of the chair based upon an analysis of the financial condition of the fund. Such payment as determined by the chair shall be included in the assessment rate established pursuant to subdivision two of section one hundred fifty-one of this chapter. The chair shall promulgate regulations to administer claims whose liability has been transferred to the fund for reopened cases. Such regulations may include exercise of the chair's authority to administer existing claims, to procure management for those claims, or to sell such liability. The chair may examine into the condition of the fund at any time on his or her own initiative or on request of the attorney of the fund.
The provisions of this subdivision shall not apply with respect to policies containing coverage pursuant to section thirty-four hundred twenty of the insurance law relating to every policy providing comprehensive personal liability insurance on a one, two, three or four family owner-occupied dwelling.
4. The commissioner of taxation and finance shall be the custodian of such special fund for reopened cases and shall invest any surplus monies thereof in securities which constitute legal investments for savings banks under the laws of this state and in interest bearing certificates of deposit of a bank or trust company located and authorized to do business in this state or of a national bank located in this state secured by a pledge of direct obligations of the United States or of the state of New York in an amount equal to the amount of such certificates of deposit, and may sell any of the securities or certificates of deposit in which such fund is invested, if necessary for the proper administration or in the best interest of such fund. Disbursements from such fund for compensation provided by this section shall be paid by the commissioner of taxation and finance upon vouchers signed by the chairman.
The commissioner of taxation and finance, as custodian of such fund, annually as soon as practicable after January first, shall furnish to the chairman a statement of the fund, setting forth the balance of monies in the said fund as of the beginning of the year, the income of the fund, a summary of payments out of the fund on account of compensation ordered to be paid by the board, medical and other expense, and all other charges against the fund, and setting forth the balance of the fund remaining to its credit on December thirty-first. Such statement shall be open to public inspection in the office of the chairman, and a copy thereof shall be transmitted by the chairman to the superintendent of financial services. The superintendent of financial services may examine into the condition of such fund at any time on his own initiative or on request of the chairman or representative of the fund. He shall verify the receipts and disbursements of the fund, and shall ascertain the liability of the fund upon all cases in which awards of compensation have been made and charged against said fund and shall render a report of such facts to the chairman. Such report shall also be open to public inspection in the office of the chairman.
5. For applications by self-insured employers or insurance carriers for transfer of liability for compensation to the fund for reopened cases under this section, received by the board prior to the first day of January, two thousand fourteen, the chair shall appoint an attorney in such proceedings to represent such fund in proceedings brought to enforce a claim against such fund. Such attorney may apply to the chair for authority to hire such medical or other experts and to defray the expense thereof and of such witnesses as are necessary to a proper defense of the application within an amount in the discretion of the chair and, if authorized, it shall be a charge against the special fund provided herein.
6. Notwithstanding any other provision of this chapter, no award of compensation or death benefits shall be made against said special fund or against an employer or an insurance carrier where application therefor is made after a lapse of eighteen years from the date of the injury or death and also a lapse of eight years from the date of the last payment of compensation.
7. For the purposes of this section the date of the last payment of compensation shall be deemed to mean the date of actual payment of the last installment of compensation previously awarded; provided, however, that where the case is disposed of by the payment of a lump sum, the date of last payment for the purpose of this section shall be considered as the date to which the amount paid in the lump sum settlement would extend if the award had been made on the date the lump sum payment was approved at the maximum compensation rate which is warranted by the employee's earning capacity as determined by the board under section fifteen of this chapter.
8. The provisions of this section shall not apply to any open case pending before the board on April twenty-fourth, nineteen hundred thirty-three or to any closed case in which an application for reopening was received prior to such date, or to awards for deficiency compensation made pursuant to section twenty-nine of this chapter, nor shall it apply during the pendency of an appeal provided for by section twenty-three of this chapter; provided, however, that such provisions shall be retroactive in effect except as to payments into the special fund provided for an employer or his insurance carrier, and except as otherwise herein provided.
9. (a) Notwithstanding any other provision of this chapter, every employee who is receiving workers' compensation under this chapter for a permanent and total disability resulting from an accidental injury or occupational disablement which occurred prior to January first, nineteen hundred seventy-nine and every widow or widower who is receiving death benefits under this chapter on account of the death of his or her spouse prior to January first, nineteen hundred seventy-nine shall receive supplemental benefits upon application therefor to the board, which shall be payable in the first instance by the employer or its insurance carrier in accordance with the provisions of this subdivision. These supplemental benefits shall commence on July first, nineteen hundred ninety and shall continue during the period of such permanent total disability or entitlement to death benefits.
(b) If such employee, widow or widower is receiving the statutory maximum benefit in effect at the time of the accidental injury or death, the supplemental benefit shall be an amount which, when added to the regular benefit established for the case, shall equal the maximum weekly benefit in effect for a permanently totally disabled employee, widow or widower whose claim arose on January first, nineteen hundred seventy-nine.
(c) If such employee, widow or widower is receiving a weekly benefit which is less than the statutory maximum benefit which was in effect on the date of the accidental injury or death, the supplemental benefit shall be an amount equal to the difference between the regular benefit being received and a percentage of the maximum benefit in effect on January first, nineteen hundred seventy-nine, determined by multiplying the latter benefit by a fraction, the numerator of which is the regular benefit and the denominator of which is the statutory maximum benefit in effect at the time of the accidental injury or death.
(d) In the event the supplemental benefit computed under this subdivision amounts to less than five dollars, then the supplemental benefit allowed shall be a minimum of five dollars, less the amount, if any, by which the combination of such supplemental benefit and the regular benefit exceeds the maximum weekly benefit in effect for a permanently totally disabled employee, widow or widower whose claim arose on January first, nineteen hundred seventy-nine.
(e) The employer or his insurance carrier paying the supplemental benefits required under this subdivision shall claim reimbursement for each such case from the reopened cases fund under this section, commencing one year from the date of the first such payment and annually thereafter while such supplemental payments continued, on a form prescribed by the chairman.
(f) The special disability fund created under subdivision eight of section fifteen and the reopened cases fund created under section twenty-five-a and the aggregate trust fund created under section twenty-seven of this chapter shall be deemed to be insurance carriers for purposes of this subdivision, other than the payment of the assessment under the provisions of subdivision three of this section.
(g) Whenever payment of the supplemental benefits prescribed hereunder is not made by the insurance carrier by reason of the insolvency of such insurance carrier, or in the case of a self-insurer, by reason of the insolvency of such self-insurer or the discontinuance of its operations, such payment shall be made directly out of the reopened cases fund under this section by the commissioner of taxation and finance upon vouchers approved by the chairman of the workmen's compensation board.
Last modified: February 3, 2019