According to Board Subject #046-630, there are five mechanisms by which the issue of WCL §25-a may be raised prior to January 1, 2014:
1.) The claimant’s filing of a written application for compensation;
2.) The filing of a medical report indicating a change of condition;
3.) The carrier’s filing of a request, on a form RFA-2, to transfer liability to Special Funds when there is proof that further medical or indemnity benefits are payable;
4.) Any party’s raising the issue of WCL § 25-a liability at a hearing; or
5.) The Board’s raising the issue on its own motion. Matter of DEL Labs, 2009 NY Wrk Comp 2940 8739.
Based on this language, there may be an argument that shifting liability to the Fund for Reopened Cases under WCL §25-a does not require an affirmative application by the carrier or employer prior to 1/1/14, but certainly this is the safest and best course of action.
Board Subject #046-630 also sets forth “principles” for the submission of “proper and complete” applications for WCL §25-a applications and indicates that “incomplete” applications will not be considered as of the December 31, 2013 deadline.
Leaving for the moment the issue of whether the Board has the authority to create “principles” which could affect the substantial rights of the parties by issuing a Subject Number, to avoid having this argument with the Board it appears that the employer or carrier must now submit an application with a detailed factual and legal offer of proof as to how the claim qualifies for WCL §25-a relief or risk having an application determined to be incomplete and thus a defective application for WCL §25-a relief.
Now, in addition to having a case where there is a claim (an application for payment by the claimant or a health care provider) made more than seven years after the date of injury and more than three years after the last payment of compensation on a claim that has been truly closed, it appears that the employer or carrier must also submit a complete written application which will require the following to minimize the risk of having an application be deemed incomplete:
CARRIER OR EMPLOYER’S COMPLETE WRITTEN APPLICATION
1.) The carrier must support its application with an offer of proof as to why § 25-a relief should be granted as of the date of the application. The Request for Further Action (RFA-2) application must include the factual and legal basis for the application, and refer specifically to Board documents and/or attachments.
2.) The factual and legal requirements of § 25-a transfer must exist at the time of that application. Therefore preemptive applications or subsequently cured applications will not suffice.
3.) Affirmative support for the carrier’s application for WCL § 25-a relief includes:
a. Claimant has not lost any time since the true closing of the case;
b. No advance payments of compensation have been made;
c. If same employer, claimant working at full salary and not under light duty;
d. No medical report demonstrating a change in condition or that could be taken as a medical provider’s request to reopen;
e. At time of closure, there were no foreseeable ongoing issues.
These requirements are troublesome and potentially onerous and one has to assume that the Board is going to require strict adherence to these “principles” or run the risk that the application will be deemed “incomplete.”
A complete application thus must include some proof or assertion that two basic criteria for obtaining WCL §25-a are met:
1.) The case was truly closed;
2.) There has not been a reopening within the prohibited time frame.
These are frequently complicated and mixed questions of law and fact and employers or carriers would likely best be served by referring such applications during the remaining weeks of 2012 to defense counsel.
A. SHOW THAT THERE HAS BEEN PAYMENT OF COMPENSATION WITHIN THREE YEARS OF THE REOPENING.
i. Claimant Return to Work at the Employer of Record:
If the Claimant has returned to work at the employer of record, the Board appears to be requiring proof that there has been no advance payment of compensation. It is not clear what proof will suffice. At a minimum it would appear that the RFA-2 should have the following attached to it:
· A statement/correspondence/letter from the employer on its letterhead indicating that the claimant has not had any lost time as a result of the injury, and that no advance payment of compensation has been made, and that the claimant has been working at full salary and not under light duty would likely suffice. Alternatively, an affidavit could be prepared.
· A C-25, or the Claimant’s Application for Reopening of Claim, More Than Seven Years after Accident, which indicates that the claimant has not had any lost time as a result of the injury, has not received an advance payment of compensation from the employer of record, and that the claimant has been working at full salary and not under light duty would also in all likelihood be sufficient.
If the Claimant retired from the employer of record litigation might ensure on the issue of whether this was DB or regular retirement, and in either event, whether the claimant was attached to the labor market.
ii. Claimant Returned to Work at another Employer
When the claimant has returned to work at a different employer the issue of advance payment of compensation is generally not as likely of an impediment to WCL §25-a relief, although if the claimant return to work at the employer of record at all after the closing, the employer or carrier should still be concerned about advance payment of compensation.
However, it appears that the Board will be requiring the carrier or employer to submit affirmative “support” with the application demonstrating that the claimant did not have any lost time or reduced earnings as a result of the injury. As a result, the employer or carrier should attach either a C-25 or some other evidence demonstrating that the claimant has not had any lost time to its RFA-2 in a claim where the claimant returned to work for a different employer.
The C-25 is supposed to provide evidence that the claimant has not had any lost time as a result of the injury or that the claimant has been working at full salary and not under light duty. The challenge will be on those claims when the claimant returned to work at another employer and is unresponsive to requests for completion of a C-25 or submits an incomplete form. There are several possible mechanisms for addressing this contingency such as subpoena, attorney affirmation after reviewing eCase, affidavit of an adjuster who spoke to the claimant which might provide the requisite affirmative showing that the
B. SHOW THAT THERE HAS BEEN A TRUE CLOSING AND THAT NO MEDICAL REPORT REOPENED THE CASE WITHIN SEVEN OR THREE.
In addition to providing evidence that there has been no payment of compensation during the prohibited time period, the RFA-2 should also probably include a letter or other statement asserting that the medical reports do not demonstrate a change in condition or that could be taken as a medical provider’s request to reopen and that there were no open ongoing issues at time of closure such that the case was truly closed.
Given these new requirements, the most prudent employers and carriers will likely have defense counsel obtain the requisite evidence and then prepare a letter making arguments about the legal and factual reasons that liability should be shifted to the Fund for Reopened Cases in support of applications for WCL §25-a before 1/1/14.