25 - Compensation, how payable.
§ 25. Compensation, how payable. 1. When no controversy; penalties: failure to notify of cessation of payment; late payment of installment. (a) The compensation herein provided for shall be paid periodically and promptly in like manner as wages, and as it accrues, and directly to the person entitled thereto without waiting for an award by the board, including those cases previously established and closed by the board upon receipt of an application to reopen such case, except in those cases in which the right to compensation is controverted by the employer. (b) The first payment of compensation shall become due on the fourteenth day of disability on which date or within four days thereafter all compensation then due shall be paid, and the compensation payable bi-weekly thereafter; but the board may determine that any payments may be made monthly or at any other period, as it may deem advisable. An award of compensation payable for permanent partial disability under paragraphs a through t, inclusive, of subdivision three of section fifteen of this article, shall be payable in one lump sum, without commutation to present value upon the request of the injured employee. (c) If the employer or insurance carrier does not controvert the injured worker's right to compensation such employer or insurance carrier shall, either on or before the eighteenth day after disability, or within ten days after the employer first has knowledge of the alleged accident, whichever period is the greater, begin paying compensation and shall immediately notify the chair in accordance with a form to be prescribed by him, that the payment of compensation has begun, accompanied by the further statement that the employer or insurance carrier, as the case may be, will notify the chair when the payment of compensation has been stopped. (d) Whenever for any reason compensation payments cease, the employer or its insurance carrier shall within sixteen days thereafter, send to the chair a notice on a form prescribed by the chair that such payment has been stopped, which notice shall contain the name of the injured employee or his or her principle dependent, the date of accident, the date to which compensation has been paid and the whole amount of compensation paid. In case the employer or its insurance carrier fails so to notify the chair of the cessation of payments within sixteen days after the date on which compensation has been paid, the board may impose a penalty upon such employer or its insurance carrier in the amount of three hundred dollars, which shall be paid to the claimant. Such penalty shall be collected in like manner as an award of compensation. (e) If the employer or insurance carrier shall fail to pay any installments of compensation within twenty-five days after the same become due, there shall be paid by the employer or, if insured, its insurance carrier, an additional amount of twenty percent of the compensation then due which shall accrue for the benefit of the injured worker or his or her dependents and shall be paid to him or her or them with the compensation, unless such delay or default is excused by the board upon the application of the employer or insurance carrier upon the ground that owing to conditions over which the employer or insurance carrier had no control, such payment could not be made. The employer in each such instance shall also be assessed the sum of three hundred dollars, which shall be paid to the claimant. (f) Whenever compensation is withheld solely because a controversy exists on the question of liability as between insurance carriers, surety companies, the special disability fund, the special fund for reopened cases, or an employer, the board may direct that any carrier, surety company, the special disability fund, the special fund forreopened cases shall immediately pay compensation and bills for medical care to the extent payable in accordance with sections thirteen-g, thirteen-k, thirteen-l and thirteen-m of this chapter, pending determination of such issue. Any such payment or payments shall not be deemed an admission against interest by the carrier, surety company, special disability fund or the special fund for reopened cases. After final determination, the parties shall make the necessary and proper reimbursement including the payment of simple interest at the rate established by section five thousand four of the civil practice law and rules in conformity with such determination. 2. Procedure when compensation controverted; penalties: late filing; controversy without just cause. (a) In case the employer decides to controvert the right to compensation, it shall, either on or before the eighteenth day after disability or within ten days after it has knowledge of the alleged accident, whichever period is the greater, file a notice with the chair, on a form prescribed by the chair, that compensation is not being paid, giving the name of the claimant, name of the employer, date of the alleged accident and the reason why compensation is not being paid. If the insurance carrier shall fail either to file notice of controversy or begin payment of compensation within the prescribed period or within ten days after receipt of a copy of the notice required in section one hundred ten of this chapter, whichever period is the greater, the board may, after a hearing, impose a penalty in the amount of three hundred dollars, which shall be in addition to all other penalties provided for in this chapter and shall be paid to the claimant. Such penalty shall be collected in like manner as an award of compensation. (b) In the event the board shall notify an employer or his insurance carrier that a workers' compensation case has been indexed against such employer, and the employer or insurance carrier decides to controvert the right to compensation, a notice of controversy shall be filed with the chair within twenty-five days from the date of mailing of a notice that the case has been indexed. Failure to file the notice of controversy within the prescribed twenty-five day time limit shall bar the employer and its insurance carrier from pleading that the injured person was not at the time of the accident an employee of the employer, or that the employee did not sustain an accidental injury, or that the injury did not arise out of and in the course of the employment. However, the board, in the interest of justice, shall, upon the showing of good cause therefor, permit the filing or the amendment of a notice of controversy to raise an issue not theretofore raised because of mistake, inadvertence, omission, irregularity, defect or surprise, or based upon newly discovered evidence. (c) If the board shall upon a hearing determine that objections to an award of compensation by the employer or insurance carrier were interposed without just cause, it shall state the grounds for such determination and shall require the employer or the insurance carrier to pay to the claimant, in addition to the amount presently due under the award, the sum of three hundred dollars. 2-a. Pre-hearing conference. (a) In any controverted case, upon receipt of the notice of controversy, the board shall schedule a pre-hearing conference before a referee or conciliator as soon as practicable but not to exceed forty-five days after receipt of notice of controversy and a medical report referencing an injury. The board shall give notice of the pre-hearing conference to all parties. A party may appear at such conference pro se, or by an attorney or licensedrepresentative or other representative authorized by the board to appear on behalf of such party. (b) The purpose of the conference shall be to consider the following: (i) confirmation that all appropriate forms, including medical reports, have been submitted and a verification that all information on the forms is accurate; (ii) addition of any other necessary parties, where appropriate; (iii) simplification and limitation of factual and legal issues, where appropriate; (iv) presentation of a list of proposed witnesses, where appropriate; (v) scheduling the case for a hearing; and (vi) entering into a stipulation. (c) The referee or conciliator may continue the conference and order the production of any necessary reports, including, where appropriate, an examination by a carrier's consultant. At the conclusion of the conference, the referee or conciliator may issue a written order. The referee or conciliator may, upon agreement of all parties, issue a decision which shall constitute a decision of the board for all purposes. If a claimant shall be unrepresented, a decision issued by a referee upon agreement of all parties at a pre-hearing conference shall not become final until it shall have reviewed and approved by the chair or a referee of the board designated by the chair. Such review by the chair or an employee of the board so designated shall occur no later than fourteen days from the date the proposed decision is submitted for review and approval. The unrepresented claimant shall have ten days from receipt of notice of such approval to withdraw from the agreement. If not withdrawn, such agreement shall constitute an award of the board for all purposes. Upon receipt of written notification of such withdrawal by the unrepresented claimant, the board shall rescind the decision made by the referee and restore the case to the regular hearing calendar process. Such decision shall constitute a decision of the board for the purposes of section twenty-three of this article. (d) In cases where the claimant is represented by an attorney or a licensed representative, ten days before the conference, each party shall file a conference statement noting the specific issues in dispute, including the information required in paragraph (b) of this subdivision. Discovery shall close at the end of the pre-hearing conference. Evidence not disclosed or obtained thereafter shall not be admissible unless the proponent of the evidence can demonstrate that it was not available or could not have been discovered by the exercise of due diligence prior to the conference. If a claimant is unrepresented, the carrier shall file such a statement. (e) Proceedings in the pre-hearing part shall be conducted in accordance with the rules promulgated by the chair or the board. 2-b. Conciliation. (a) 1. There is hereby created within the board a conciliation process. The conciliation process will permit claims to be handled on a more expeditious and informal basis and provide a mechanism for claims to be addressed without undue controversy. 2. Conciliation may also address requests by hospitals, physicians or other health care providers for payment of bills rendered by them in any case, regardless of the expected duration of benefits, pursuant to sections thirteen-g, thirteen-k, thirteen-l and thirteen-m of this article, and regardless of the dollar amount of the bill. (b) Each claim that is filed shall be reviewed for possible transfer for conciliation. Claims where the expected duration of benefits is fifty-two weeks or less shall be transferred for conciliation within thirty days of receipt of a carrier's response to notice of index required under this section, except uncontested claims where there havebeen only temporary or minor injuries and where board appearance by the claimant is unnecessary. Such minor and uncontested claims shall be handled through a motion calendar as prescribed by the rules and regulations promulgated pursuant to this section. (c) Upon receipt of a claim for conciliation, a meeting shall be scheduled, if necessary, within thirty days with all concerned parties before a conciliation counsel. (d) All information relative to the claim shall be made available to all parties no later than five days before the meeting. This information shall include, but not be limited to medical records, wage information, date of accident or injury and the amount of time lost from work as a result of such accident or injury. (e) At such meeting the conciliation counsel shall promptly and prior to any other proceeding authorized under this section inform any claimant participating in the meeting without benefit of a counsel or licensed representative of their right to have representation present, their right to a reasonable adjournment to procure representation, of their right to withdraw from any agreement at such meeting in accordance with subdivision (g) of this section and such other and further information as the chair may require to insure that an uncounselled claimant fully understands the conciliation process. After informing claimant in accordance with this subdivision, conciliation counsel shall request a written consent to participate in the conciliation process from claimant, and if such claimant declines to continue, shall immediately cease the conciliation process and cause the claim to be restored to the regular hearing calendar process. (f) After reviewing all relevant information, conciliation counsel shall prepare a proposed decision which shall be sent to all parties. Any party may object to the proposed decision and request a hearing within thirty days of the receipt of the proposed decision. If no objection is made during such thirty day period the proposed decision shall constitute a final award of the board for all purposes except that it shall not be reviewable under sections twenty-two and twenty-three of this article. If any party objects to the proposed decision, the case shall be transferred to the regular hearing calendar process. (g) If a claimant shall be unrepresented, the case shall not be agreed to until it shall have been reviewed and approved by the chair or a referee of the board designated by the chair. Such decision shall be rendered within fifteen days of receipt of the agreement from the conciliation bureau; provided, however, that a claimant shall have ten days from receipt of notice of such approval to withdraw from the agreement. If approved, such agreement shall constitute an award of the board for all purposes except that it shall not be reviewable under sections twenty-two and twenty-three of this article. Should the agreement be disapproved or should the claimant withdraw from the agreement as provided herein, the case shall be transferred to the regular hearing calendar process. (h) After the proposed decision has become final, the carrier shall make payments of any award as required in the decision within ten days. If, however, the carrier does not make the payments as required in the decision within ten days of the date in which the proposed decision becomes final, the chair shall impose of a fine of five hundred dollars for failure to live up to the terms of the decision upon verification that payment has not been timely made. Of that amount, three hundred dollars shall be made payable to the claimant and two hundred dollars shall be payable to the board for the operation and administration of this chapter.(i) If, in any case which has been addressed by conciliation, the claimant requires additional medical care beyond that agreed to or requires benefit payments beyond that agreed to, the meeting, if necessary, shall be reconvened within thirty days from the receipt of information demonstrating the need for additional medical care or benefit payments. If it is determined that the claimant's condition may continue for a period of time which is more than six months, such case shall be reopened and transferred to the regular hearing calendar. If, however, it is determined, based on medical evidence, that the claimant's condition will improve in less than six months, the case shall remain in conciliation. 2-c. Collective bargaining; alternative dispute resolution. (a) For the purposes of employments classified under sections two hundred twenty, two hundred forty and two hundred forty-one of the labor law, an employer and a recognized or certified exclusive bargaining representative of its employees may include within their collective bargaining agreement provisions to establish an alternative dispute resolution system to resolve claims arising under this chapter. Any collective bargaining agreement or agreement entered into by the employee and an employer which purports to preempt any provision of this chapter or in any way diminishes or changes rights and benefits provided under this chapter, except as expressly provided herein, shall be null, void and unenforceable. (b) Except as specifically provided in this subdivision, nothing in this section or any collective bargaining agreement providing for an alternative dispute resolution system for the resolution of claims arising under this chapter shall preempt any provision of this chapter or in any way diminish or change any benefits to which an employee, or his or her dependents, or survivors may be entitled pursuant to the provisions of this chapter. (c) The collective bargaining agreement may establish the following obligations and procedures: (i) an alternative dispute resolution process to resolve claims arising under this chapter, which may include but is not limited to mediation or arbitration; (ii) the use of an agreed managed care organization as defined in section one hundred twenty-six of this chapter or a list of authorized providers for medical treatment, which may be the exclusive source of all medical and related treatment provided under this chapter; (iii) the use of an agreed list of authorized providers for the purpose of providing medical opinions and testimony, which may be the exclusive source of all such medical opinions and testimony under this chapter; (iv) benefits for injured workers, their dependents or their survivors supplemental to those provided under this chapter; (v) a light duty, modified job, or return to work program; (vi) a vocational rehabilitation or retraining program; and (vii) worker injury and illness prevention programs and procedures. (d) The determination of an arbitrator or mediator pursuant to an alternative dispute resolution procedure pertaining to the resolution of claims arising under this chapter shall not be reviewable by the workers' compensation board, and the venue for any appeal shall be to a court of competent jurisdiction in accordance with section twenty-three of this chapter. (e) (i) Determinations rendered as a result of an alternative dispute resolution procedure shall remain in force during a period in which the employer and a recognized or certified exclusive bargaining representative are renegotiating a collective bargaining agreement.(ii) Upon the expiration of a collective bargaining agreement which contains a provision for an alternative dispute resolution procedure for workers' compensation claims, the resolution of claims relating to injuries sustained as a result of a work-related accident or occupational disease may, if the collective bargaining agreement so provides, be subject to the terms and conditions set forth in the expired collective bargaining agreement until the employer and a recognized or certified exclusive bargaining representative negotiate a new collective bargaining agreement. (iii) Upon the termination of a collective bargaining agreement which is not subject to renegotiation, the employer and its employees shall become fully subject to the provisions of this chapter to the same extent as they were prior to the implementation of the collective bargaining agreement provided, however, that when a claim has been adjudicated under the alternative dispute resolution procedure, the claimant or employer to such claim or matter shall be estopped from raising identical issues before the board. (f) Commencing January first, nineteen hundred ninety-six, and annually thereafter, a copy of the collective bargaining agreement shall be filed with the chair. The employer shall report the number of employees subject to the collective bargaining agreement. The chair or the chair's designee shall review the collective bargaining agreements for compliance with the provisions of this section, shall notify the parties to the agreement if the agreement is not in compliance, and shall recommend appropriate action to bring the agreement into compliance. 3. Hearings; procedure; penalty for late payment of award and for dilatory tactics or unjustified lack of preparedness of a carrier or employer. (a) The chairman may in the interest of justice at any time refer a case in which payments are being made as above to the board for a hearing, and shall immediately upon receipt of notice from the injured worker, from the employer, or from the insurance carrier that the employee's right to compensation is controverted, or that payments of compensation have stopped or been suspended, make such investigations, or cause such medical examinations to be made, or refer the case for such hearings, as will properly protect the rights of both parties, either as to any compensation then due or as to any compensation that may become due in the future for temporary or permanent disability, and shall promptly cause the resumption of payments in case the injured person is entitled thereto. (b) Nothing herein shall limit the right of the board in a particular case to hold a hearing and make an award in accordance with other provisions of this chapter. No case shall be closed without notice to all parties interested and without giving to all such parties an opportunity to be heard. (c) The board shall keep an accurate record of all hearings held. Whenever a hearing must be continued or adjourned because the carrier or employer has engaged in dilatory tactics or exhibited unjustified lack of preparedness, the board shall impose a penalty of twenty-five dollars to be paid to the fund created by subdivision two of section one hundred fifty-one of this chapter and shall in addition make an award of seventy-five dollars payable to the injured worker or his or her dependants. Dilatory tactics may include but shall not be limited to: failing to subpoena medical witnesses or to secure an order to show cause as directed by the referee, failing to bring proper files, failing to appear, failing to produce witnesses or documents after they have been requested by the referee or examiner or as directed by the hearing notice, unnecessarily protracting the production of evidence, orengaging in a pattern of delay which unduly delays resolution, except that no penalty shall be imposed nor award made under this subdivision if the carrier or employer produces evidence sufficient to excuse its conduct to the satisfaction of the referee. (d) If, in any case, the issues have not been resolved within one year after such issues have been raised before the board, or if multiple claims arise from the same accident or occurrence, or if all parties agree to an expedited hearing, or if a notice of controversy is filed, or if the chair otherwise deems it necessary, the chair may order that the case be transferred to a special part for expedited hearings. Proceedings in such part shall be conducted in an expedited manner. Cases in such special part shall be scheduled in such a manner so that, where appropriate, any and all outstanding issues may be addressed at one hearing. An adjourned case shall be rescheduled as soon as practicable, but no later than thirty days following such adjournment. If a request for an adjournment is made by a carrier or employer which is not an emergency and is deemed to be frivolous by the chair, a penalty of one thousand dollars shall be imposed by the chair. If such employer or carrier is represented by an attorney or licensed representative who is not an employee of the carrier or employer, the attorney or licensed representative shall be responsible for the payment of such penalty. If a request for an adjournment is made by a claimant who is represented by an attorney or a licensed representative which is not an emergency and is deemed to be frivolous by the chair, a penalty of five hundred dollars shall be imposed by the chair on the attorney or licensed representative. Such penalty shall be paid by the attorney or licensed representative and shall not come out of the claimant's award. No penalty shall be imposed on an unrepresented claimant who requests an adjournment. (e) If the employer or its insurance carrier fails to file a notice or report requested or required by the board or chair or otherwise required within the specified time period or within ten days if no time period is specified, the board may impose a penalty in the amount of fifty dollars unless the employer or carrier produces evidence sufficient to excuse its conduct to the satisfaction of the board. Such penalty shall be in addition to all other penalties provided for in this chapter and shall be paid into the state treasury. (f) If the employer or its insurance carrier shall fail to make payments of compensation according to the terms of the award within ten days or the uninsured employers' fund shall fail to make payments of compensation according to the terms of the award within thirty days after such ten day period except in case of an application to the board for a modification, rescission or review of such award, there shall be imposed a penalty equal to twenty percent of the unpaid compensation which shall be paid to the injured worker or his or her dependents, and there shall also be imposed an assessment of fifty dollars, which shall be paid into the state treasury. 4. Advance payments of compensation; employer reimbursements; receipts for payment. (a) If the employer has made advance payments of compensation, or has made payments to an employee in like manner as wages during any period of disability, he shall be entitled to be reimbursed out of an unpaid instalment or instalments of compensation due, provided his claim for reimbursement is filed before award of compensation is made, or if insured, by the insurance carrier at the direction of the board, unless he shall file a waiver of reimbursement with the chairman, in which event compensation shall be paid to the claimant notwithstanding the advanced payments.(b) An injured employee, or in case of death his dependents or personal representative, shall give receipts for payment of compensation to the employer paying the same and such employer shall produce the same for inspection by the chairman, whenever required. (c) If the employer or comptroller of the state or city of New York or trustees duly constituted under any welfare, pension or benefit plan, agreement or trust to which the injured employee is a party or of which he is a beneficiary, and which plan, agreement or trust shall provide that the injured employee shall not be entitled to or shall be limited in the amount of benefits or payments thereunder if he shall be entitled to benefits under this chapter, shall have advanced or paid benefits or payments thereunder to the injured employee during any period in which his right to benefits under this chapter was not determined, then and in such event such employer or comptroller of the state or city of New York or trustees shall be entitled to be reimbursed out of the unpaid instalment or instalments of compensation due, provided claim therefor is filed together with proof of the terms of said plan, agreement or trust and of the fact and amount of payment with the board before award of compensation is made. 4-a. Public employee welfare fund; wage replacement payment; lien. a. For the purposes of this subdivision, the following terms shall have the following meanings: (i) "Public employer" shall mean the state, a municipal corporation, a local government agency or other political subdivision, a public authority, a public benefit corporation, or any other political subdivision of the state. (ii) "Public employee" shall mean all employees of a public employer. (iii) "Public employee welfare fund" shall mean any trust fund or other fund established or maintained unilaterally or jointly by one or more labor organizations which represent the relevant public employees and/or one or more public employers whether directly or through trustees, to provide employee welfare benefits for public employees or their families or dependents, or for both, including, but not limited to, medical, surgical or hospital care or benefits, and benefits in the event of sickness, accident, disability, or death. b. Where a public employee who is ineligible for benefits under section two hundred three or two hundred seven of this chapter by reason of his public employer's failure to voluntarily elect coverage under section two hundred twelve of this chapter, is disabled and has claimed or subsequently claims and is entitled to workers' compensation benefits under this article, and that public employee is covered by a public employee welfare fund which voluntarily provides a wage replacement benefit in the event of disability, the following provision shall apply: Where such an employee receives a wage replacement benefit from such a public employee welfare fund in respect of the disability which forms the basis of the workers' compensation claim, the public employee welfare plan making such payment may, at any time before an award of workers' compensation benefits is made, file with the board a claim for reimbursement out of the proceeds of such award to the public employee for the period for which the wage replacement benefit was paid to the public employee under the rules of the public employee welfare fund, and shall have a lien against the award for reimbursement, provided that the insurance carrier or other entity liable for payment of the award receives, before such award is made, a copy of the claim for reimbursement from the public employee welfare fund which paid the wage replacement benefit, or provided that the board's decision and award directs such reimbursement.5. Deposits for security; lump sum payments in certain cases. (a) Whenever the chair may deem it advisable any employer or insurance carrier may be required to make a deposit with the chair to secure the prompt and convenient payment of such compensation, and the chair, shall have power to make payments therefrom upon any awards. The interest on all funds on deposit with the chair pursuant to this paragraph, may be transferred to the uninsured employers' fund whenever the chair shall determine that the net assets of the uninsured employers fund are less than two million dollars or the amount expended by that fund in the prior year whichever is greater. (b) The board, whenever it shall so deem advisable, may commute such periodical payments to one or more lump sum payments to the injured employee, or, in case of death, his or her dependents, provided the same shall be in the interests of justice. Such commutation shall be made according to the method prescribed in section twenty-seven of this article. 6. At the request of a person legally responsible for a minor claimant, the board may, after a hearing, direct that payment be made to the legally responsible person, to be used for the benefit of such claimant. A person who is so designated shall report to the chairman annually with respect to the use of such payments. The chairman may require that a report be made more often than annually if there is reason to believe that the person receiving such payments is using the payments for purposes other than the benefit of the claimant. Should the chairman or the board find that the payee is using the payment for purposes other than the benefit of the claimant the board shall after a hearing revoke the payee's designation and appoint a new payee. The chairman shall take such action as is necessary to recover from the payee any funds improperly used. 7. Payments and awards to minors. All awards of compensation required to be made to minors under this chapter shall be paid to or for the benefit of such minors. The board may in its discretion require the appointment of a guardian, before making payments not otherwise directed to be paid by action of such board, where such award exceeds two hundred and fifty dollars. The board may, when such course seems advisable, direct that funds, payable to or for the benefit of a minor, be paid for vocational training or maintenance of such minor supplementing payments made under subdivision nine of section fifteen of this chapter. 8. Rules. The board may adopt rules to carry out the provisions of this section, including provision for reports to the chairman by a guardian of the use of moneys paid to minors and reports to the chairman by a designated payee of compensation to a minor, in accordance with this section. 9. Direct deposit. (a) Compensation payments or any portion of compensation payments may be allowed, upon the written request from an injured worker or a person entitled to a death benefit provided by this chapter, to be deposited directly in a bank for any purpose to an account in the name of such injured worker or person entitled to a death benefit, on forms provided by the board, and duly filed in accordance with such regulations, provided that an injured worker's employer, if such employer is an authorized self insured employer, or otherwise such employer's insurance carrier, has elected to permit the direct deposit of such compensation payments. (b) The board is hereby authorized to promulgate reasonable rules and regulations, as may be necessary, to administer the direct deposit of injured worker's compensation payments. In regard to the deposit of a portion of an injured worker's compensation payment, such regulationsmay establish a minimum dollar amount and may limit the maximum number of partial deposits allowed. (c) As used in this subdivision, the term "bank" includes any financial institution which is a member of the New York automated clearinghouse or any financial institution designated by the board.