The 2013/2014 New York State Budget has passed with initiatives closing the Fund for Reopened Cases. Specifically, the Budget states that the legislation will close the Reopened case Fund (WCL 25-a) to any new claims. As you are aware payment in certain old and re-opened claims may be made out of a special fund, the Fund for Reopened Cases, to relieve the employer and the insurance carrier of this obligation. The Budget notes that the bill eliminating WCL 25-a would be effective immediately, however, “no application by a self-insured employer or an insurance carrier for transfer of liability of a claim to the fund for reopened cases would be accepted by the Board on or after the first day of January 2014.”1
Therefore, as the time for WCL 25-a relief appears to be coming to a close, right now is a good time to start review of your files to determine whether or not they qualify for WCL 25-a relief. All applications for WCL 25-a relief must be made prior to January 1, 2014. Applications made on, or after, January 1, 2014 will NOT be considered.
I. When reviewing claims for WCL 25-a eligibility the first thing that should be asked is whether the prescribed time periods have elapsed.
-Has 7 years from the date of accident elapsed ?
-Has 3 years from the last payment of compensation elapsed?
*For this question, Special Funds looks to the date on the most recent C-8.6*
II. You then must review the claim for open issues. In order for WCL 25-a to apply, the claim must be “truly closed.” This means there must be no open issues; such as issues of reduced earnings or lost time raised and never addressed, issues of additional sites of injury that remain unaddressed, issues of permanency-such as schedule loss of use never made formal, etc.
-As many of us are now aware, this requirement is difficult to prove in a WCL 25-a situation. Should you need any assistance in determining whether your file is “closed” for WCL 25-a purposes, Jones Jones LLC has former SFCC attorneys on staff to review and answer any WCL 25-a questions you may have.
III. Additionally, in order for WCL 25-a to apply, there must be a current claim for medical or indemnity benefits. The SFCC has been very successful in utilizing the case law of Matter of Rogers v Del Labs, 52 AD3d 1129 (2008) to aid in determining qualifying claims.
-The Board has found, in accordance with Rogers, that a claim may be reopened for WCL 25-a considerations in the following situations:
1) the claimant’s filing of an 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.
-Essentially, this means that there must be a current issue before the Board. In the event that the claimant has not sought or received medical treatment in several years, or has no claim for past or future awards, there may be no current claim on the case. The Board has considered and denied WCL 25-a relief in these circumstances and ultimately decided that such cases must remain closed.
-If you have a question as to whether a current claim exists, and all of the other necessary aspects of WCL 25-a are met, you can file an RFA-2 for a hearing on WCL 25-a where the claimant will be asked at the subsequent hearing whether he or she seeks or wishes to undergo any medical treatment or is seeking any other claim. If the claimant responds in the affirmative, that statement can be a “current claim” for the Board to consider for relief under WCL 25-a.
IV. Finally, it is important to not seek WCL 25-a until the proper time. If a claim for 25-a is “premature,” meaning that it was made before the requisite time periods have elapsed (prior to 7 years from the accident and 3 years from the last payment of compensation) and prior to a “true closing”, the WCLJ and the Board will strike down any argument for application for WCL 25-a.
- Once the claim has been assessed for the above mentioned issues RFA-2 forms should be filed with the Board requesting hearings on WCL 25-a applicability. All RFA-2 forms for 25-a relief must be filed prior to January 1, 2014 for consideration.
Please feel free to contact our office at firstname.lastname@example.org should you wish to have your files to be reviewed for WCL 25-a considerations. Now is the time to start reviewing your files in order to determine whether or not they are subject to WCL 25-a relief.