October 10, 2013
Workers' Compensation Law (WCL) § 25-a(1-a), enacted as part of the 2013 reform legislation (L. of 2013, Ch. 57, Part GG, §13) directed the closing of the Fund for Reopened Cases to new claims for WCL § 25-a relief on or after January 1, 2014.
WCL § 25-a (1-a) states:
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.
To ensure a smooth transition for the closing of the Fund, we are setting forth some basic principles, based on statute and case law, to guide carriers as to the filing of proper and complete applications for § 25-a relief. All complete applications must be received no later than December 31, 2013. The Board will not consider any applications that are incomplete as of the December 31, 2013 deadline.
- There are two basic elements to a successful application for WCL § 25-a relief.
- First, that the case reopening occurs beyond seven years from the date of accident and three years from the date of the last payment of compensation.
- Second, case law has established the additional requirement that a case must be truly closed prior to the application to reopen.
- Complete written applications 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.
- The factual and legal requirements of § 25-a transfer must exist at the time of that application. For example, a carrier cannot obtain § 25-a relief in an open case if the seven- and three-year periods are not satisfied until after December 31, 2013. The carrier cannot file the application as a place holder to reserve the right to WCL § 25-a in the future.
- Affirmative support for the carrier’s application for WCL § 25-a relief includes:
- Claimant has not lost any time since the true closing of the case;
- No advance payments of compensation have been made;
- If same employer, claimant working at full salary and not under light duty;
- No medical report demonstrating a change in condition or that could be taken as a medical provider’s request to reopen;
- At time of closure, there were no foreseeable ongoing issues.
- The issue of WCL § 25-a may be raised prior to January 1, 2014, upon
- The claimant's filing of an application for compensation;
- The filing of a medical report indicating a change of condition;
- 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;
- Any party's raising the issue of WCL § 25-a liability at a hearing; or
- The Board's raising the issue on its own motion.
Matter of DEL Labs, 2009 NY Wrk Comp 2940 8739
- The carrier cannot request that a case be reopened for the purpose of WCL § 25-a based solely upon meeting the seven- and three-year time period requirements. There must be some type of liability (either medical or indemnity) to transfer. However, if the case is already opened and the issue of WCL § 25-a is raised prior to January 1, 2014, WCL § 25-a can be litigated even if there is no current liability to be transferred.
¹ This requirement does not apply to 3 d. or 3 e. below.
Robert E. Beloten