NY Work Comp L § 27 (2021)
2021 New York Laws WKC - Workers' Compensation Article 2 - Compensation 27 - Depositing Future Payments in the Aggregate Trust Fund.

§  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.