As a former attorney for Special Funds’ Conservation Committee, I noted with great interest that on March 29, 2013, NY’s Workers’ Compensation Law Section 25-a was amended to close the Fund for Reopened Cases to new claims where applications are filed after 1/1/14:
(1-A). 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.
What does this mean? Based on this language, self-insured employers and carriers need to get their applications in for 25-a relief in BEFORE 1/1/14.
If you are a self-insured employer or carrier, you are going to need to be very aggressive in identifying these claims during the next 9 months to ferret out all claims which might qualify for such relief before the 1/1/14 deadline.
You should immediately start running reports to identify the following claims:
7 Years from the Date of Accident or Injury Have Elapsed. The threshold is a there must be a claim that is reopened more than 7 years after the date of accident or injury.
3 Years from the Last Payment of Compensation. A claim that is reopened more than 3 years after the last payment of compensation – which refers specifically to lost wage benefits, not to medical.
There must be a claim for benefits after the requisite time period has lapsed. There mere lapse of time is not sufficient. There must be a claim for benefits after the requisite time has elapsed either for medical treatment or lost wages.
Applications can be retroactive. If you have a claim that meets these criteria, you can request 25-a relief, even if the qualifying claim for benefits was made in the past – i.e. you received a bill for medical treatment a year ago which when received, met the time thresholds described above you can request that liability be shifted as long as the claim can be still be considered “reopened”, i.e., there has not been a reopening and a closure and then the request for a transfer is made.
Therefore, reports to identify claims which could qualify for 25-a relief should look for claims where: 1.) the date of accident or injury is more than 7 years ago; 2.) where there has been no indemnity payment in 3 years; and, 3.) where there is a claim (for lost time of medical) more than 7 years after the date of accident/injury or more than 3 years after the last payment of compensation.
Once you identify these claims, you need to investigate the following additional requirements:
There must have been a prior “true closure” of the claim.
This is a legal argument – the standard is generally whether further proceedings were contemplated. Unaddressed issues such as temporary rates, an unresolved site of injury, evidence of permanency that was not addressed, or an unresolved medical bill among other things can prevent a finding that the claim was “truly closed”.
GET THESE CASES REOPENED, ADDRESS THE ISSUES THAT HAVE NOT BEEN ADDRESSED, GET THE CLAIM CLOSED AGAIN AND THEN REQUEST 25-A.
These are claims that could qualify for 25-a if the impediment to 25-a relief, i.e, the claim’s not having been “closed” is addressed and then there is a subsequent reopening.
There cannot have been a “reopening” w/in 7 years after the date of accident or injury or w/in 3 years after the last payment of compensation.
This is another legal argument – there can be no submissions within 7 or 3 which should have led to a “reopening” such as a surgical request or medical evidence of lost time among other things.
AGAIN, GET THESE CASES REOPENED, ADDRESS THE ISSUES WHICH CONSTITUTE A REOPENING, GET THE CLAIM CLOSED AGAIN AND THEN REQUEST 25-A.
Again, these are claims that could qualify for 25-a if the impediment to 25-a relief, i.e, the “reopening” issue is addressed, and then there is a closure and subsequent reopening.
WE WOULD BE GLAD TO HELP YOU WITH THESE CLAIMS.
I was Assistant Attorney for Special Funds for 7 years from May of 2000 to July of 2007. I worked for Steven M. Licht, Esq., Attorney for Special Funds Conservation Committee, and performed the following duties:
- Researched legal issues to assist Attorney/CEO in determining policy involving liability of the funds and myriad other legal issues;
- Made recommendations about whether appeals were taken to the Appellate Division and Court of Appeals for all workers’ compensation claims and third-party actions involving Special Funds;
- Extensive appellate experience, drafting, filing, responding to, perfecting and administering Appellate Division and Court of Appeals filings for all claims involving Special Funds;
- Orally argued Special Funds’ position before the Court of Appeals, Appellate Division, numerous Supreme and District Courts, and the Workers’ Compensation Board;
- Drafted and filed administrative appeals and memoranda of law for all four SFCC district offices: Albany, Buffalo, Dewitt and New York; and,
- Instructed, advised and trained SFCC staff statewide on the applicable law and SFCC’s internal procedures through seminars and authoring of Claims Manual and Hearing Representative Manual.
As you can surmise, as a result of this experience, I have considerable knowledge regarding the requirements for shifting liability to the Fund for Reopened Cases and I believe I am uniquely qualified to assist you with these applications.
Additionally, we added an attorney to our staff who has considerable experience with WCL §25-a liability as a result of his work for Special Funds Conservation Committee during the last several years to further assist our clients who will be aggressively seeking this relief during the remainder of the year.
If we can be of assistance, either by screening claims for eligibility, filing RFA-2s to ensure that your applications are timely, or in identifying potential impediments to the successful shift of liability to the Fund for Reopened Cases, we would be glad to help. Our contact information is:
The Law Offices of Melissa A. Day, PLLC
636 North French Road
Suite 3
Buffalo, NY 14228
Phone (716) 616-0111
mday@madwcdefense.com
Regardless, take full advantage of the time we have left to shift liability on as many of these claims as possible. Good luck!