TN 2 (02-09)

The New York State Workers' Compensation Board administers their WC. WC insurance may be provided through a competitive State fund (the State Insurance Fund, SIF), a private insurance carrier, or employers may self-insure.

A. Types of WC payment

WC ‘pay periods’ are 2 weeks long. The WC benefit rate a worker receives is determined by the date of injury, and it does not increase when new maximum limits are adopted. Cases are limited by the current weekly maximum amount, which applies to the total of all outstanding ‘cases’ (claims)-- not each individual case -- so an injured worker never receives more than the State maximum per week, regardless of how many claims he has. However, the NY state maximum can be exceeded when there are also Section 32 settlements and SLU (Schedule Loss of Use) awards which are not paid as periodic payments, but treated as such for the purpose of WC offset. For example, if a claimant receives the NY State maximum on one case in periodic payments and is then awarded a S32 settlement on another WC case, the NY State maximum can be exceeded.

EXCEPTION: If Longshore & Harbor Workers’ Compensation Act (LHWCA) is paid through the State as NY WC, the State maximum may be exceeded. For more information on LHWCA, see DI 52115.005.

NOTE: NY’s types of WC are named differently than normal. What NY refers to as ‘partial temporary disability’ or ‘PT’ WC is what SSA calls ‘temporary partial’ (TP). Because of this, be careful in using abbreviations in your documentation.

1. Total Temporary

This is based on two-thirds of the worker’s average weekly wage not to exceed the maximum rate established at the time of the accident. It is paid for the duration of the disability.

NOTE: Do not confuse TT WC with Temporary Disability benefits, which are State public disability benefits (PDB). For information on NY PDB benefits, see DI 52135.175.

2. Partial Temporary

This is paid when the injured worker returns to work at a lower wage. It is paid at 2/3 of the difference between the worker’s wages before and after his injury.

3. Total Permanent disability

The weekly rate for 100 percent disability is calculated at 2/3 of the worker’s average weekly wage not to exceed the maximum rate established at the time of the accident. It is paid for the duration of the disability.

4. Partial Permanent (specific disability)

• Disfigurement: NY pays WC benefits for serious facial, head, neck, or chest disfigurements. The maximum payable is $20,000.

• Scheduled Loss of Use (SLU): These payments are made for a fixed period at a fixed amount, for the loss of the use of a body part (hand, leg, etc.). They are shown as "SLU" on the SROI previously C-8/8.6 paper form. They cause offset and are not the same as Section 15.3.v payments (see below).

• Section 15.3.v Payments: Payments under New York State Workers' Compensation Law Section 15.3.v compensate a worker for loss of a limb. These payments are rare, and are NOT OFFSETTABLE, since the law includes a reverse-offset provision.

5. Settlement payments

• Section 32 Settlement: This represents a lump sum award. Settlements of this kind usually are a final disposition of the claim for the injury in question.

• Third-Party Settlement (or Third-Party Action): In these cases, the carrier stops paying WC because another (third) party is liable. The SROI previously C-8 or EC-23 form shows when payment stopped. The form should also show when payment starts again, but it does not always do so. In addition, the carrier ordinarily places a lien on the settlement, requiring that the third party repay some or all of the WC (see DI 52105.010 on Third-Party Settlements). The carrier may also use the form to show the amount of the third-party payment being subtracted from the WC payment. When this happens, the WC payment is not being made for the period shown. Don’t assume that the WC payments resumed at the end of the period. Instead, look for documentation that says specifically when the WC payment resumed.

NOTE: After a third-party settlement, New York WC documents often use the term "waiver of reimbursement." Since there is usually a cost-sharing arrangement involved in the agreement of which the WC lien is a part, do not accept the term "waiver of reimbursement" on its face. GET A COPY OF THE SETTLEMENT ITSELF OR AN OFFICIAL BREAKDOWN OF ITS TERMS. This is needed to determine if the carrier is actually waiving the lien or simply paying its portion of the third-party settlement costs.

6. Volunteer Fireman's Benefit Law (VFBL)

Payments made under the VFBL of New York are WC. The VFBL benefits correspond to the maximum benefit paid under the WC law. Since these VFBL benefits are not under the State WC statute, knowledge of such benefits would probably not be elicited from the WC question on the disability application. Also, since these people are volunteer firefighters, the last employer shown would not provide a lead to this benefit. Be alert to the possibility of VFBL benefits when asking the worker about the nature and history of the disability.

7. World Trade Center Volunteer Fund (WTCVF or Volunteer Fund) payments

The World Trade Center Volunteer Fund (WTCVF or Volunteer Fund) is money appropriated by the Federal government to the New York State Workers’ Compensation Uninsured Employers’ Fund for the claims of volunteers who lost wages because they were injured or disabled during the World Trade Center rescue, recovery, or clean-up between 09/11/2001 and 09/12/2002. Article 8-A of the New York State Worker’s Compensation Law provides that volunteers who became disabled as a result of their efforts are eligible to file a claim for WC benefits EVEN THOUGH THE STATUTORY TIME TO FILE HAS PASSED. Although volunteers are usually not “employees” for the purposes of WC benefits, the Uninsured Employers’ Fund is deemed the employer for purposes of administering and paying claims to these volunteers, and the benefits are made by the N.Y.S. Workers’ Compensation Board. Benefits paid through the WTCVF are workers’ compensation benefits and ARE subject to offset.

8. Section 207 Salary Continuation to Firefighters and Police Officers

Section 207 of New York's General Municipal Law provides for the payment of full salary to certain salaried firefighters and police officers injured in the line of duty. Because the salary payments are not made under the WC law and because the WC is not paid directly to the injured worker, Section 207 payments are NOT OFFSETTABLE. For information on WC payments made to employers see DI 52110.010.

Verify the exact period for which the worker received Section 207 (see DI 52145.001 for acceptable evidence). If the verification in file is over 2 years old, re-verify to determine whether Section 207 payments continue and, if not, the dates the worker actually received this WC.

• Remove offset only for the period Section 207 payments were received.

• Advise the affected worker that offset is not being imposed because the payments are under Section 207.

• Instruct the worker to notify us if he begins to receive regular WC.

9. Supplemental WC

Supplemental benefits are payable to workers receiving total permanent disability based on injury dates before 01/01/1979. They are not available to workers with injury dates of 01/01/1979 or later. The worker must have filed for supplemental WC benefits to receive them. The State of New York reduced its supplemental WC benefits by 50 percent of any Federal disability benefits received. Since the supplemental payment is considered an integral part of the basic WC benefit, no part of the whole WC benefit was cause for offset of DIB before 07/01/1990.

The effective date of supplemental WC benefits was determined by the WC injury date, as shown in the chart below:

• Verify that the worker is entitled to the supplemental benefit.

• Remove offset effective with the date of imposition (but no earlier than the above effective dates) through 06/30/1990.

• Code the case as reverse jurisdiction (RJ) for that period.

NOTE: The New York law was changed effective 07/01/1990. As of that date New York does NOT offset supplemental WC payments, and RJ no longer applies. Therefore, even if supplemental benefits are still being paid, the WC is subject to offset effective 07/1990 on.

B. Apportionment

1. Apportionment refers to the percentage of responsibility for the disability. In New York State, it can mean that there is more than one injury for which WC claims have been filed. In that case, any payments awarded are split among the cases in accordance with the percentage of disability caused by each injury. If apportionment is mentioned on the EC-23, normally the WCB case number(s) of the other case(s) will be indicated on the EC-23. Check for additional WC claims for the injured worker if apportionment is mentioned.

   When more than one carrier is involved in a WC claim, you may see SROI’s previously C-8's that appear to contradict each other. For example, if liability is split between two carriers, the SROI from carrier "A" may show the total amount of the award (even though carrier "A" is only paying 75 percent of that amount), while the SROI from carrier "B" shows only the amount that carrier "B" is paying (in this example, 25 percent). Or, a SROI from one carrier may show a payment amount of zero, simply because another carrier is making the payments. Sometimes the total payments being made by ALL the carriers add up to less than 100 percent of the awarded amount. In that case, offset is based only on the amount actually being paid to the beneficiary.

2. Apportionment can also mean that there was a non-work injury or disease that caused some of the disability (the non-work injury is usually referred to as ‘not causally related’). In this case, a portion of the awarded WC may not actually be paid.

   For example: A worker with three claims is awarded $400 per week in WC, but 10 percent of his disability is determined to have not been work related. Liability in this case is assigned as follows: 40 percent for the first claim ($160 of the $400), 25 percent for each of the other two claims ($100 each), and 10 percent not work related ($40). The number holder’s weekly workers compensation benefit in this case would be paid at $360 per week, not $400 per week.

3. WC forms sometimes show the total benefit being awarded, while at other times they only show the portion of the payment assigned to that WC case number. It is not always apparent what the correct rate for offset is from one form alone. Multiple WC forms must be checked and compared.

C. Cost-of-living Adjustments (COLA)

NY does not give COLAs on its WC.

D. Attorney fees

Exclude attorney expenses per DI 52150.050H. “Applying excludable expenses to the offset computation.”

E. Retirement insurance benefit (RIB) considerations

NY does not offset WC paid to disabled workers for receipt of RIB.

F. Time limits for filing claims

Claims must be filed within 2 years of the accident, or within 2 years after the worker knew, or should have known, that the injury or illness was related to employment.

G. Verifying WC

Proof of WC should first be requested from the worker (SROI previously C-8 or C23). New York requires the worker’s written consent before WC information will be sent to us.

NY WC cases can be extremely complicated. Therefore, it is imperative that we maintain detailed, accurate information regarding how the WC used for offset was calculated. Supporting documents (such as SROI’s previously C-8's) MUST be retained in electronic format (see DI 52145.015).

1. Obtaining Information from the New York WCB:

New York cases are assigned 8-digit WCB case numbers. The case number format:

DYYSSSSS: ‘D’ is the code for WC district office, ‘YY’ is the year the case was indexed, and ‘SSSSS’ is a 5-digit sequence number beginning with 00001 on January 1^. However, for volunteer firefighters, the case number would start with F and have only a 4-digit sequence number (FDYYSSSS); and for volunteer ambulance workers, it would start with ‘A’ (ADYYSSSS).

There are cases where we need to see material that’s been ‘archived’ in NY’s online records. In this case, you can write to the State to request that they restore the file.

Write to them at:

New York State Workers' Compensation Board
PO Box 5205
Binghamton NY 13902-5205

Be sure to include the injured worker's name, address, SSN, and WC case number (the name of the employer and the carrier also help) and ask them to “restore” the workers’ compensation information (be sure to use the term "restore").

The WCB generally responds in about 3 weeks. The documents are either mailed to us, or restored electronically to the WCB website. If your diary has matured, first check the WCB website to see if the documents were loaded; if they weren't, check to see if they were mailed as paper and/or scanned into the Paperless Processing System, the CEF, or NDRED.

2. NY State Insurance Fund (SIF):

SIF is a WC insurance carrier, administered by the State. SIF serves the same function as the private insurance carriers; it is NOT the same as the NY Workers' Compensation Board.

Often, claimants submit correspondence from SIF that shows only the SIF claim number. The SIF claim number (not the WCB case number) can be found in the "Carrier Case Number" box on the SROI previously C-8, C-23, or similar forms, and is often the only claim number shown on correspondence or check stubs from SIF. The SIF claim number consists of eleven digits, but the last three digits only identify the SIF office code. Even when the SIF claim number is shown with only 8 digits, it will be a different number than the NY WCB claim number for the same case.

Using the link in ‘Exhibits’ below, you will reach the NY SIF web site. If you input the NY SIF claim number, the website provides the name, phone number, fax number, and email address of the Case Manager assigned to the case. To use the website, input the first 8 digits of the carrier claim number. The Case Manager can assist in clarifying the SIF payments, and frequently can supply the WCB claim number if we don't already have it.

NOTE: SSA policy prohibits sending personally identifiable information (PII) to external entities via email. Therefore, even though the SIF website gives an email address for the Case Manager, you may not use email to transmit SSNs or other PII.

3. Independent Carriers:

A few carriers are self-insured, and do not report workers’ compensation benefits to the NY WC Board. An example would be the Electrical Workers Union. For self-insured carriers, technicians will need to contact the carriers directly for proof of workers’ compensation.

H. Payments to employers on SROI’s (previously C-8’s)

Employers sometimes make advance payments of compensation to an employee during periods of disability. In these situations, the employer is entitled to reimbursement of the advanced payments (see DI 52110.010 “WC/PDB Payments Made to Employer”). SROI’s often show that a certain portion of the award was used to reimburse the employer. Follow the instruction in DI 52120.175H.1.- 2. in this subsection regarding reimbursements to the employer, which is a Change of Position (COP) from Basic POMS instructions published 09/29/2008. The COP is effective February 04, 2009. Determinations made prior to the COP (i.e., in which offset was imposed against the advanced compensation payments reimbursed to the employer), can be re-opened using the COP guidelines in GN 04001.100.

1. If the WC/PDB carrier (payer) directly reimburses the employer, the reimbursed amounts are not offset.

2. If the employer files a waiver of reimbursement, the WC/PDB carrier may make payments to the employee even though advance payments were also paid to the employee. In these situations:

   • If the employee reimburses the advance payments back to the employer, the reimbursed amounts are not offset.

   • If the employee does not reimburse the advance payments back to the employer, or reimburses part, but not all of the advance payments, offset applies to the amount(s) not reimbursed.

NOTE: Do not confuse an employer’s advance payments of compensation with WC advances. WC advances are made by the WC/PDB carrier, not the employer.

I. WC forms

The following chart lists the common NY WC forms.

Effective April 23, 2014, the NY WC Board announced a mandate to utilize eClaims which mandates First Report of Injury (FROI) and Secondary Report of Injury (SROI) for all claims administrators. To enforce the mandate, Forms C-2, C-669, C-7, C-8/8.6, VAW-2 and VF-2) have been replaced by their equivalent FROI/SROI transactions and will no longer be accepted by the Board.

J. NY WC terms and abbreviations

The following chart explains the terms and abbreviations often used in NY WC forms and documents.

K. Exhibits

• New York forms: http://www.wcb.ny.gov/

• New York State Glossary of Workers’ Compensation Terms: http://www.wcb.ny.gov/content/main/TheBoard/glossary.jsp

• New York State weekly maximum WC rates: http://www.wcb.ny.gov/content/main/onthejob/wcBenefits.jsp

L. References

• NY State WC Board: http://www.wcb.ny.gov/

• NY WC Laws and Regulations: http://www.wcb.ny.gov/content/main/wclaws/newlaws.jsp

• NY SIF: https://www.nysif.com/sifivrweb/cmlookup.aspx

• Social Security Ruling 82-4 – Payments under the Volunteer Firemen’s Benefit Law of the State of New York http://mwww.ba.ssa.gov/OP_Home/rulings/di/05/SSR82-04-di-05.html

• PR 02505.035 - Precedent information on World Trade Center Volunteer Fund Benefits