27. Depositing future payments in the aggregate trust fund. 1. All payments made into the fund pursuant to the provisions of this section shall constitute an indivisible and aggregate trust fund except as hereinafter provided.
2. If an award under this chapter requires payment of death benefits or other compensation by an insurance carrier or employer in periodical payments, the board may, in its discretion, at any time, any provision of this chapter to the contrary notwithstanding, compute and permit or require to be paid into the aggregate trust fund an amount equal to the present value of all unpaid death benefits or other compensation in cases in which awards are made for total permanent or permanent partial disability for a period of one hundred and four weeks or more, for which liability exists, together with such additional sum as the board may deem necessary for a proportionate payment of expenses of administering the fund so created, including the cost of the actuarial computation by or on behalf of the board of the present value of the award, and for the purposes of this section such cases shall be known as discretionary type cases. If any such award made on or after July first, nineteen hundred thirty-five, requires payment for total permanent disability resulting from the loss of both hands, or both arms, or both feet, or both legs, or both eyes, or of any two thereof, or for permanent partial disability resulting from loss of an arm, leg, hand, foot or eye, or of death benefits by an insurance carrier which is a stock corporation or mutual association, or if any such award made on or after July first, two thousand seven requires payment for permanent partial disability under paragraph w of subdivision three of section fifteen of this article by an insurance carrier which is a stock corporation or mutual association, which for the purposes of this section shall be known as mandatory type cases, the board shall immediately compute the present value thereof and require payment of such amount into the aggregate trust fund, together with such additional sum as the board may deem necessary for a proportionate payment of expenses of administering such trust fund including the cost of the actuarial computation by or on behalf of the board of the present value of the award provided, however, that where an employer or his insurance carrier is found to be entitled to reimbursement from the special disability fund of subdivision eight of section fifteen, the computation of the present value of the award and the requirement for payment of such amount into the said trust fund shall not be mandatory and such cases shall be deemed to be discretionary type cases; further provided that where an employee entitled to compensation under this chapter be injured or killed by the negligence or wrong of another not in the same employ, the computation of the present value and the requirement for payment of such amount into the said trust fund shall be held in abeyance until (1) six months have elapsed from the award of compensation, or in any event not more than one year after the date of the accident, if the injured employee, or in case of death, his personal representatives, spouse, parents, dependents or next of kin, or anyone otherwise entitled to recover damages at common law or otherwise, on account of such injury or death, have failed to commence such action, (2) the termination of any such action brought by the injured employee, or in case of death, his personal representatives, spouse, parents, dependents or next of kin, or anyone otherwise entitled to recover damages, at common law or otherwise, on account of such injury or death, under the provisions of section twenty-nine of this article.
3. Upon payment by an employer or insurance carrier into the aggregate trust fund of an amount equal to the present value of all unpaid death benefits or other compensation under any such award together with such additional sum as the board may deem necessary for a proportionate payment of expenses of administering such trust fund including the cost of the actuarial computation by or on behalf of the board of the present value of the award, such employer or insurance carrier shall be discharged from any further liability for payment of such death benefits or other compensation, and payment of the same as provided by this chapter shall be assumed by the fund so created.
4. In the event of a review or appeal of any such award the value of which has not been paid into the aggregate trust fund, if the amount of award is modified or changed, the employer or insurance carrier shall pay directly to the claimant compensation due to the date as of which the present value of future benefits is payable into such fund, and to the said fund the present value of future benefits, but if the original award is affirmed, the employer or insurance carrier shall pay to such fund the present value of the award computed as of the effective date of the original award and simple interest on such amount at the industry standard rate, as determined by the superintendent of financial services by regulation, computed from the date of the original award to the date that payment is made into such fund, plus simple interest at the rate provided in section five thousand four of the civil practice law and rules, on past due payments of compensation to the date of the affirmance of such award, which past due payment and interest shall be made directly to the claimant. The foregoing provision shall apply in the event of such review or appeal regardless of whether the widow or widower or other parties in interest have died or the widow or widower remarried subsequent to the date as of which the present value of the original award was computed. If any award, the present value of which has been paid into the aggregate trust fund, is subsequently modified or changed by the board for any reason other than because of subsequent death or remarriage, the amount equal to the present value of the unpaid death benefits or other compensation at the effective date of such modification or change shall be computed on the basis both of the original award and of the modified or changed award. If such amount is greater on the basis of the original award, the difference shall be paid by said trust fund to the employer or insurance carrier minus the cost, if any, of the actuarial computation made by or on behalf of the board. If such amount is greater on the basis of the modified or changed award, the difference shall be paid to said trust fund by such employer or insurance carrier in addition to the cost, if any, of the actuarial computation made by or on behalf of the board. In the case of an accident, occurring on or subsequent to July first, nineteen hundred thirty-nine, where the present value of an award for permanent total or permanent partial disability other than award for a definite number of weeks has been paid into the aggregate trust fund, if an award is made for death resulting from the injury causing the said disability, the employer or insurance carrier which paid the present value of said disability award into such fund shall be entitled to the difference between the amount paid into such fund and the sum disbursed from such fund to the injured employee prior to his or her death, plus simple interest on such difference at the industry standard rate. In the case of an accident occurring on or subsequent to July first, nineteen hundred thirty-nine, where the present value of an award for permanent partial disability for a definite number of weeks has been paid into the aggregate trust fund, if the injured employee dies prior to the end of such definite number of weeks, the employer or insurance carrier which made the said payment into such fund shall be entitled to the present value of the unexpended disability benefits not payable to beneficiaries computed on the basis of annuities certain with interest at the industry standard rate, minus however the cost, if any, of the actuarial computation made by or on behalf of the board. In the case of a claim for the death of an employee resulting from an accident occurring on or subsequent to January first, two thousand one, the present value of an award paid into the aggregate trust fund shall be calculated based on the assumption that any child while under the age of twenty-three years will be enrolled and attending as a full time student in an accredited educational institution and would thereby be entitled to benefits for all periods while under the age of twenty-three years. After all such children reach the age of twenty-three, the aggregate trust fund shall refund to the carrier which paid such present value into such fund the portion of such present value representing benefits for which such children were not actually entitled because they were not enrolled and attending as a full time student in an accredited educational institution plus simple interest on such difference at the industry standard rate.
5. All computations made by the board shall be upon the basis of the survivorship annuitants table of mortality, the remarriage tables of the Dutch Royal Insurance Institution and interest at three and one-half per centum per annum on claims based on accidents occurring up to and including June thirtieth, nineteen hundred thirty-nine, at three per centum per annum on claims based on accidents occurring from July first, nineteen hundred thirty-nine up to and including August thirty-first, nineteen hundred eighty-three, at six per centum per annum on claims based on accidents occurring from September first, nineteen hundred eighty-three up to and including December thirty-first, two thousand and at the industry standard rate on claims based on accidents occurring thereafter, except (a) that computations of present values of death benefits required to be paid into the aggregate trust fund by an insurance carrier which is a stock corporation or a mutual association shall be based, in the case of a dependent parent, grandparent, blind or physically disabled child or spouse, upon said table of mortality disregarding possible change in or termination of dependency, with interest at three and one-half per centum per annum on claims based on accidents occurring up to and including June thirtieth, nineteen hundred thirty-nine, at three per centum per annum on claims based on accidents occurring from July first, nineteen hundred thirty-nine up to and including August thirty-first, nineteen hundred eighty-three, at six per centum per annum on claims based on accidents occurring from September first, nineteen hundred eighty-three up to and including December thirty-first, two thousand and at the industry standard rate on claims based on accidents occurring thereafter and (b) that computations of present values of permanent partial disability benefits awarded for a definite number of weeks shall be on the basis of annuities certain with interest at three and one-half per centum per annum on claims based on accidents occurring up to and including June thirtieth, nineteen hundred thirty-nine, at three per centum per annum on claims based on accidents occurring from July first, nineteen hundred thirty-nine up to and including August thirty-first, nineteen hundred eighty-three, at six per centum per annum on claims based on accidents occurring from September first, nineteen hundred eighty-three up to and including December thirty-first, two thousand and at the industry standard rate on claims based on accidents occurring thereafter.
6. Such aggregate trust fund shall be kept separate and apart from all other moneys of the state insurance fund, and shall not be liable for any losses or expenses of administration of the state insurance fund other than the expenses involved in the administration of such trust fund including the cost, if any, of the actuarial computations made on behalf of the board, nor shall the state insurance fund be charged with the losses or expenses of the aggregate trust fund beyond the amount of such trust fund. Any portion of such aggregate trust fund may, by order of the commissioners of the state insurance fund, approved by the superintendent of financial services, be invested in or loaned on the pledge of the same securities as provided in section eighty-seven of this chapter for the investment of the state insurance fund, and the commissioners may, upon like approval of the superintendent of financial services, also sell any such securities. Any securities belonging to the aggregate trust fund may be loaned by the commissioners of the state insurance fund, with the approval of the superintendent of financial services, under a security loan agreement as provided by section eighty-seven of this chapter for securities belonging to the state insurance fund.
7. For the purpose of securing the solvency of the aggregate trust fund, there shall be required, in addition to the payments hereinbefore provided for, a payment on each award, as follows:
(a) In the mandatory type cases based on an accident occurring on or subsequent to July first, nineteen hundred forty-one up to and including June thirtieth, nineteen hundred forty-three an amount equal to six per centum of the present value of each such case paid into such fund;
(b) In the mandatory type cases based on an accident occurring on or subsequent to July first, nineteen hundred forty-three an amount equal to ten per centum of the present value of each such case paid into such fund;
(c) In the discretionary type cases based on an accident occurring up to and including June thirtieth, nineteen hundred thirty-nine an amount equal to sixteen per centum of the present value of each such case paid into such fund;
(d) In the discretionary type cases based on an accident occurring on or subsequent to July first, nineteen hundred thirty-nine an amount equal to ten per centum of the present value of each such case paid into such fund.
Such additional payments shall be required until the surplus of the fund equals or exceeds one per centum of the total outstanding loss reserves as shown by three successive annual reports of the fund to the superintendent of financial services and such additional payment shall be required as a payment upon each award based on an accident occurring prior to July first next succeeding the third such annual report, but not as a payment upon any award based on an accident occurring on or after said July first; provided, however, that if and when the surplus of the fund as shown by any annual report thereafter shall be less than one per centum of the total outstanding loss reserves, then the additional payments as provided in paragraphs (a), (b), (c) and (d) of this subdivision shall be resumed and shall be payable upon any award based on an accident occurring on or after July first next succeeding the close of the year for which such annual report is made. Thereafter, the suspension or resumption of additional payments as required by this subdivision shall be governed by the foregoing provisions. Such loss reserves shall be computed based upon the tables specified in subdivision five of this section and interest at a standard to be determined by the superintendent of financial services by regulation.
8. In the case of a claim concerning which the aggregate trust fund enters a waiver agreement pursuant to section thirty-two of this article, the insurance carrier, as defined in subdivision twelve of section two of this chapter, which paid the present value of the award for such claim, shall not be entitled to a refund of any portion of the present value of such award.
Last modified: February 3, 2019