2007 REFORM LEGISLATION

15(8)(h):
Fund stays, is continued and shall retain the liabilities heretofore charged or chargeable
thereto
(A) No carrier or employer may file claim for reimbursement for injury or illness with a
date of accident or disablement on or after 7/1/2007.
(B) All requests for reimbursement for date of injury or date of disablement prior to
7/1/2007, for which the board has already determined SF is liable, must be submitted to
the fund by the later of:
o (i) one year after the expense has been paid; or
o (ii) one year from the effective date of this paragraph.
(C) All claims for reimbursement must be accompanied by filing fee of $250 to be
deposited in the special disability fund. Upon final ruling that claim is eligible for
reimbursement, then 200 is returned to the claimant
Time Limits
ALSO: No claim for reimbursement under 15-8 can be filed for accidents, disablements
or death on or after 7/1/2007.
No claim for reimbursement may be filed after 7/1/2010 (for older cases previously
closed prior to finding of permanency and later reopened), and no written submissions or
evidence in support of a claim for reimbursement may be submitted after 7/1/2010 in any
15-8 claim. (for C-250s to be filed)
These time limitations also apply to 14(6) claims via C-251.3 and claims for dust diseases
under 15-8(ee).
All requests for reimbursement from Special disability fund on established 15-8 and 14-6
cases must be submitted to the fund no later than one year from payment of the expense,
or one year from the effective date of the Act. (so before 3/13/08).
Filing Fee
$250.00 filing fee for all claims for reimbursement and if found eligible for
reimbursement, $200 is refunded.
Applies to both 15-8 and 14-6.
Any C-250 filed after 3/13/07 not accompanied by a filing fee is not effective.
CASES:
Jaworek v. Sears Roebuck (3d Dept 2009, motion for leave pending)
o Time limitations in 15(8)(h) apply to claims for reimbursement under 14(6)

Warner v. Franklinville central schools (3d Dept 2011)

o Carrier allegedly sent us 15-8(d) reimbursement requests on 7/27/07. We never
received, and requests were filed with the board in 2009 when the issue was
raised. Carrier had affidavit, but not from someone with personal knowledge.

Court remanded for development of the record allowing for testimony of someone
with personal knowledge of the handling of the forms.
SUBJECT NO 046-179
o C-250 must be accompanied by filing fee after 3/13/2007, if multiple claims
filed by same entity at same time, then $250 filing fee for each claim can be
submitted in one check for the total amount (but must be accompanied by
spreadsheet with clmt name, wcb case number, and check number for each case.
SUBJECT NO 046-194
o Claim for reimbursements for 15(8) must indicate date of accident or date of
disablement of June 30, 2007 or earlierif date of accident or disablement not
set, then may be filed with unknown date and filing fee..if date of accident or
disablement set on or after 7/1/2007, then fee not returned as reimbursement was
not established.
SUBJECT NO 046-223R
o Difference between claim for reimbursement (initial claim) and request for
reimbursement (application for repayment) (between 2(19) and (20).)
o Found doctrine of equitable tolling applies for requests for reimbursement where
the claim for reimbursement is timely filed and established, and therefore carriers
request for reimbursement can be made within one year after the date on which
the special disability funds liability is established.
SUBJECT NO 046-432
o Both the C-250 and the documentary evidence showing that: (1) PPI hinders or
likely to hinder; (2) subsequent work related injury or occupational disease; and
(3) the disability caused by both conditions is M&S greater than that which would
have been caused by the work related condition alone. Both must be filed by
7/1/2010. (special funds can still submit evidence in opposition after 7/1/2010
however).
o (still permits cross exam of sf medical witnesses), and WCLJs can still hold
hearings after 7/1/2010.
OTHER CHANGES:

Caps on Claims with PPD classification

o For dates of accident or disablement after 3/13/2007, number of weeks entitled to
PPD depends on % loss of wage earning capacity.
o Calculation of cap is triggered as of the date of classification. (no cap for death
claims or permanent total disability).
o Note: for claimant was loss of wage earning capacity of more than 80%, can
petition within one year of the termination date of indemnity benefits for a
reclassification to PTD or TID

Limits on permanent partial disability benefits after 3/13/2007

o 15(3)(w). unlimited permanent partial disability benefits ended. The limits start
at the time the board finds claimant to have a permanent partial disability. (Table
2-2 at end of book, and pg5-59).
Percentages are oddno formula for measuring loss of wage earning
capacity after degree of medical impairment and extent of functional
capacity are determined
The worker who cannot return to work at all, the statute codified the case
law on total industrial disability and assures such severely injured workers
they will be able to apply for total industrial disability. 35(2).
Injured workers at 80% or greater level of permanent partial
disability, new statute provides they may apply to be found
permanently totally disabled or totally industrially disabled so long
as they make application to be reclassified within the year prior to
their benefits being terminated due to factors reflecting extreme
hardship (not defined in statute). 35(3).
Inconsistency between 15-5(a) and the new amendments. New
legislation provides for caps on awards less than 25%, where 15-5(a)
provides that the board will not determine a loss of earning capacity less
than 25%.
Second problem is where loss of wage earning capacity is measured by
reduced earningsusually vary over time and decline. Statute does not
make provisions for such changes.
Also, no guidance regarding stopping or restarting entitlement to ppd
benefits when claimants return to work but reinjure or aggravate the prior
injury, resulting in a new period of lost time.
Unclear where claimant requires surgery after being awarded permanent
partial disability benefitsdo weeks of temporary total disability
following surgery court against total weeks of PPD? Or will they be
excluded?

Aggregate Trust Fund

o As of 7/1/2007, deposit into ATF is mandatory for all cases with PPD
classification. Carrier must pay the PV of a claim to the ATF when claimant is
classified with PPD by WCB and remains out of work. (does not apply to selfinsured employer or state insurance fund). (always still liable for medical). No
requirement to deposit to ATF where 15(8) applies, or where 3d party action or
15(8) application pending, not required to pay to ATF. (this is in addition to the
already mandatory ATF deposits for PTD and SLU).
Medical Authorization and Medical Costs Containment Measures
o Prior authorization requirement is raised to $1000.00(13)
o (also allows employer carrier to require clmt to have diagnostic tests done with a
specific vendor or network, if proper notice is given and the and location within
reasonable distance.

New Sanctions and Penalties

o Sanctions and penalties for frivolous claim or defense. If board determines that
a proceeding has been instituted or continued without reasonable ground, the cost
of the proceeding shall be assessed against the party instituting said proceeding
and atty fees assessed against attorney representing that party.
o Frivolous app. For board review increased to 500 from 250.

Section 32 settlements
o Amended to make 32 settlement offers mandatory on the part of the carrier.
o Opportunity to settle within two years of date of index or within 6 months of
permanent disability, whichever is later. 6 months within establishment of death
claim.
o The settlement offer must differentiate portions of the settlement specifically for
the indemnity award, medical treatments, and the attorneys fee.
o ATF can also enter into 32 agreements with claimant. (if settled for less than the
money deposited by the carrier, carrier is reimbursed the difference) carrier may
still be liable for medical tx if the 32 only closes indemnity)).
o SFCC now able to negotiate a 32 with claimant without approval of the carrier
WAMO was created to initiate and negotiate settlements to close out 15-8 claims.
SFCC or WAMO must provide written notice to the SIE/carrier/SIF within 14
days of the submission of the settlement agreement to WCB for approval.

Raynor v. Landmark Chrysler (NY 2011)

o Mandatory ATF deposits, not improperly applied retroactively, did not violate
fifth amendment takings clause, there was a rational basis for treating private
carriers differently from the SIF and self-insurers (equal protection), and the
amended statute did not violate substantive or procedural due process.
AND THE MEDICAL TREATMENT GUIDELINES. NEW MEDICAL TX GUIDELINES.