Section 15.8
Section 14(6)
Section 25a


Section 15.8

15(8) Disability following previous permanent physical impairment.

(a) Declaration of policy and legislative intent. As a guide to the interpretation and application of this subdivision, the policy and intent of this legislature is declared to be as follows:

First: That every person in this state who works for a living is entitled to reasonable opportunity to maintain his independence and self-respect through self-support even after he/she has been physically handicapped by injury or disease;

Second: That any plan which will reasonably, equitably and practically operate to break down hindrances and remove obstacles to the employment of partially disabled persons honorably discharged from our armed forces, or any other physically handicapped persons, is of vital importance to the state and its people and is of concern to this legislature;

Third: That it is the considered judgment of this legislature that the system embodied in this subdivision, which makes a logical and equitable adjustment of the liability under the workers' compensation law, which an employer must assume in hiring employees, constitutes a practical and reasonable approach to a solution of the problem for the employment of physically handicapped persons.
Moreover, because of the insidious nature of slowly developing diseases such as silicosis and other dust diseases and because of the reluctance on the part of employers to employ persons previously exposed to silica or other harmful dust, means should also be provided whereby employers will be encouraged to employ and to continue the employment of such persons, by apportioning liability fairly between the employer and industry as a whole without at the same time removing any incentive for the prevention of harmful dust diseases.

(b) Definition. As used in this subdivision. "permanent physical impairment" means any permanent condition due to previous accident or disease or any congenital condition which is or is likely to be a hindrance or obstacle to employment.

(c) Permanent total disability after permanent partial disability.
Notwithstanding the provisions of paragraph (d) of this subdivision, if an employee who has previously incurred permanent partial disability through the loss of one hand, one arm, one foot, one leg, or one eye, incurs permanent total disability through the loss of another member or organ, he/she shall be paid, in addition to the compensation for permanent partial disability provided in this section and after the cessation of the payments for the prescribed period of weeks special additional compensation during the continuance of such total disability to the amount of sixty-six and two-thirds per centum of the average weekly wage earned by him/her at the time the total permanent disability was incurred. If such employee shall established an earning capacity by employment he shall be paid during the period of such employment, instead of the additional compensation above provided, two-thirds of the difference between his average weekly wages at the time the total disability was incurred and his wage earning capacity as determined by his actual earnings in such employment, subject to the limitations in subdivision six of this section. Such additional compensation, and expense as in this subdivision provided, shall be paid out of the special disability fund and in the manner as hereinafter in this subdivision provided.

(d) If an employee of an employer who has secured the payment of compensation as required under the provisions of section fifty of this chapter, who had a total or partial loss or loss of use of one hand, one arm, one foot, one leg or one eye or who has other permanent physical impairment incurs a subsequent disability by accident arising out of and in the course of his employment or an occupational disease arising therefrom, resulting in a permanent disability caused by both conditions that is materially and substantially greater than that which would have resulted from the subsequent injury or occupational disease alone, the employer or his insurance carrier shall in the first instance pay all awards of compensation and all medical expense provided by this chapter, but such employer or his insurance carrier, except as specifically provided in paragraph(ee) of this subdivision, shall be reimbursed from the special disability fund created by this subdivision for all compensation and medical benefits subsequent to those payable for the first one hundred four weeks of disability for claims where the date of accident or date disablement occurred prior to August first, nineteen hundred ninety-four, and two hundred sixty weeks of disability for claims where the date of accident or date of date of disablement occurred on or after August first, nineteen hundred ninety-four, regardless of knowledge on the part of the employer as the existence of such pre-existing permanent physical impairment.
Notwithstanding anything to the contrary in this chapter, there may be apportionment of liability for the special disability fund under this subdivision within a single claim by disposition between the fund, carriers, self-insurers or employers.
. (1992, chgd. by chap. 545, eff. 7/24/92.)

(e) If the subsequent injury of such an employee resulting from an accident arising out of and in the course of his employment or an occupational disease resulting therefrom, as set forth in paragraph (d) of this subdivision, shall result in the death of the employee and it shall be determined that either the injury or death would not have occurred except for such pre-existing permanent physical impairment, the employer or his insurance carrier shall in the first instance pay the funeral expenses and the death benefits prescribed by this chapter, but he or his insurance carrier, except as specifically provided in paragraph (ee) of this subdivision, shall be reimbursed from the special disability fund created by this subdivision for all death benefits payable in excess of one hundred four weeks of disability for claims where the date of accident or date of disablement occurred prior to August first, nineteen hundred ninety-four, and two hundred sixty weeks of disability for claims where the date of accident or date of disablement occurred on or after August first, nineteen hundred ninety-four, regardless of knowledge on the part of the employer as to the existence of such pre-existing permanent physical impairment.

(ee) If an employee of an employer who has secured the payment of compensation as required under the provisions of section fifty of this chapter is disabled from silicosis or other dust disease, or in the event of death, death was due to silicosis or other dust disease, and if such an employee has been subject to an injurious exposure in an employment of this chapter, the provisions of this subdivision shall apply except as hereinafter stated; and it shall not be required that the employee had, either at the time of hiring or during the employment, any previous physical condition or disability which may result in such disability or death.

In all such cases the employer or his insurance carrier shall in the first instance pay all awards of compensation and all medical expense provided by this chapter; and in the event of death, the employer or his insurance carrier shall also in the first instance pay the funeral expenses and the death benefits prescribed by this chapter; but such employer or his insurance carrier shall be reimbursed from the special disability fund created by this subdivision for all compensation and medical benefits subsequent to those payable for all the first one hundred four weeks of disability for claims where the date of accident or date of disablement occurred prior to August first, nineteen hundred ninety-four, and two hundred sixty weeks of disability for claims where the date of accident or date of disablement occurred on or after August first, nineteen hundred ninety-four, and, in the event of death, the employer or his insurance carrier shall be reimbursed from the disability fund created by this subdivision for all death benefits payable in excess of one hundred four weeks for claims where the date of accident or date of disablement occurred prior to August first, nineteen hundred ninety-four, and two hundred sixty weeks for claims where the date of accident or date of disablement occurred on or after August first, nineteen hundred-four; provided, however, that when total disability or death occurred after July first, nineteen hundred forty-seven, and prior to July first, nineteen hundred seventy-four, the employer or his insurance carrier shall be reimbursed from the special disability fund created by this subdivision for all compensation and medical benefits including funeral expenses and death benefits subsequent to those payable for the first two hundred sixty weeks of disability and death benefits combined; and further provided, however, that in the event of death due to silicosis or other dust disease on or after July first, nineteen hundred forty-seven, of such an employee who shall have been totally disabled from silicosis or other dust disease prior to such date, the employer or his insurance carrier shall be reimbursed from the special disability fund created by this subdivision for death benefits subsequent to those payable for the first one hundred four weeks.

The compensation of an employee who has heretofore been found to be totally and permanently disabled from silicosis or other dust disease and whose disablement occurred prior to July first, nineteen hundred forty-seven, shall be continued or resumed, as the case may be, after June first, nineteen hundred fifty-one, and payments shall be made during continuance of such disability at his/her regular weekly rate, notwithstanding the fact that such compensation is in excess of the maximum provided for his/her case under former article four-a of this chapter; but such compensation in excess of the maximum so provided shall be paid from the special fund created by this subdivision.

+(f) Any award under this subdivision shall be made against the employer or his or her insurance carrier, but if such employer or insurance carrier be entitled to reimbursement as provided in this subdivision; notice or claim of the right to such reimbursement shall be filed with the board in writing prior to the final determination that the resulting disability is permanent, but in no case more than one hundred four weeks after the date of disability or death or fifty-two weeks after the date that a claim for compensation is filed with the chair, whichever is later, or in the event of the reopening of a case theretofore closed, no later than the determination of permanency upon such reopening.

The employer or his or her insurance carrier shall in the first instance make the payments of compensation and medical expenses provided by this subdivision. Whenever for any reason payments are not made by the employer or his or her insurance carrier at any time after the payments have been made for the first one hundred four weeks for claims where the date of accident or date of disablement occurred prior to August first, nineteen hundred ninety-four, and two hundred sixty weeks for claims where the date of accident or date of disablement occurred on or after August first, nineteen hundred ninety-four, the payments of subsequent compensation and medical expenses shall be made out of the special disability fund by the commissioner of taxation and finance upon vouchers approved by the chair of the workers' compensation board. In case any payments prior to the expiration of the first one hundred four weeks for claims where the date of accident or date of disablement occurred prior to August first, nineteen hundred ninety-four, and two hundred sixty weeks for claims where the date of accident or date of disablement occurred on or after August first, nineteen hundred ninety-four are not made by the employer or his or her insurance carrier by reason of the insolvency of such carrier, the payments until the expiration of one hundred four weeks for claims where the date of accident or date of disablement occurred prior to August first, nineteen hundred ninety-four, and two hundred sixty weeks for claims where the date of accident or date of disablement occurred on or after August first, nineteen hundred ninety-four shall be made out of the stock workers' compensation security find created by the provisions of section one hundred of this chapter if the insolvent carrier be a stock company, or out of the mutual workers' compensation security fund created under the provisions of section one hundred and nine-d of this chapter if the carrier be a mutual company. If any such payments are not made by an employer permitted to secure the payment of compensation pursuant to the provisions of subdivision three of section fifty of this chapter, the payments shall be made out of the proceeds of the sale of any securities deposited by the employer with the chair, upon vouchers approved by the chair, until such payments have been made for one hundred four weeks for claims where the date of accident or date of disablement occurred prior to August first, nineteen hundred ninety-four, and two hundred sixty weeks for claims where the date of accident or date of disablement occurred on or after August, nineteen hundred ninety-four, from the date of disability, after which date they shall be made out of the special disability fund in the manner above provided.

In all cases in which awards have been made and charged against the special funds or injuries have occurred, which would require payments to be made in accordance with the provisions of former subdivision eight of this section as it existed immediately prior to the time this subdivision, as hereby added, takes effect, the compensation so awarded or that shall be awarded in such cases shall continue to be paid out of the special disability fund by the commissioner of taxation and finance upon vouchers approved by the chair of the workers' compensation board, as though this subdivision had not been enacted.
+ (1990, chgd, by chap. 352, eff.8/1/90.)

(g) Upon the making of a determination that an employer or insurance carrier is entitled to reimbursement from the special disability fund in any case where the employer or insurance carrier has made payment into the aggregate trust fund, as provided in section twenty-seven of this chapter, or where payment of compensation has been commuted into one or more lump sum payments, the employer or insurance carrier shall be reimbursed forthwith for the sums paid in excess of those payable for one hundred four weeks for claims where the date of accident or date disablement occurred prior to August first, nineteen hundred ninety-four, two hundred sixty weeks for claims where the date of accident or date of disablement occurred on or after August first, nineteen hundred ninety-four or two hundred sixty weeks in a silicosis or other dust disease case as otherwise provided in paragraph (ee) of this subdivision, exclusive of administrative and loading charges paid pursuant to section twenty-seven, in accordance with the decision and order of the board. In all other cases such employer or insurance carrier shall, periodically every six months from the decision and order of the board, be reimbursed from such special disability fund for all compensation and medical expense in accordance with the provisions of paragraph (f) of this subdivision.

(h) Special disability fund. 3The fund heretofore maintained and provided for by and pursuant to former subdivision eight of this section, is hereby continued and shall retain the liabilities heretofore charged or chargeable thereto under the provisions of such former subdivision eight of this section as it existed immediately prior to the time this subdivision, as hereby added, takes effect, and the liabilities chargeable thereto under the provisions of former subdivision eight-a of this section as added by chapter seven hundred forty-nine of the laws of nineteen hundred forty-four and repealed at the same time this subdivision, as hereby added, takes effect, and payments therefrom on account of such liabilities shall continue to be made as provided herein. The said fund shall be known as the special disability and shall be available only for the purposes stated in this subdivision, and the assets thereof shall not any time be appropriated or diverted to any other use or purpose. The chair of the board shall, as soon as practicable after April first, nineteen hundred forty-five, asses upon and collect from each insurance carrier, including the state insurance fund and any county, city, town, village or other political subdivision failing to secure compensation pursuant to subdivision one or two of section fifty of this chapter, a sum equal to one per centum of the total compensation paid by such carrier in the year ending March thirty-first next preceding the date of such assessment. As soon as practicable after May first in the year nineteen hundred fifty-eight, and annual thereafter as soon as practicable after January first in each succeeding year, the chair of the board shall assess upon and collect from all self-insurers, the state insurance fund, and all insurance carriers, a sum equal to one hundred fifty per centum of the total disbursements made from the special disability fund during the preceding calendar year, less the amount of the net assets in such fund as of December thirty-first of said preceding calendar year. Such sum shall be allocated to (i) self-insurers and the state insurance fund based upon the proportion that the total compensation payments made by all self-insurers and the state insurance fund bore to the total compensation payments made by all self-insurers, the state insurance fund and all insurance carriers and (ii) insurance carriers based upon the proportion that the total compensation payments made by all insurance carriers bore to the total compensation payments by all self-insurers, the state insurance fund and all insurance carriers during the fiscal year which ended within said preceding calendar year. The portion of such sum allocated to self-insurers and the state insurance fund that shall be collected from each self-insurer and the state insurance fund shall be a sum equal to the proportion of the amount which the total compensation payments of each such self-insurer or the state insurance fund bore to the total compensation payments made by all self-insurers and the state insurance fund during the fiscal year which ended within said preceding calendar year. The portion of such sum allocated to insurance carrier shall be collected from each insurance carrier shall be a sum equal to that proportion of the amount which total premiums written by each such insurance carrier bore to the total written premiums reported by all insurance carriers during the fiscal year which ended within said preceding calendar year. For the purposes of this paragraph, "direct premiums written" means gross premiums, including policy and membership fees, less return premiums and premiums on polices*not taken. An employer who has ceased to be a self-insurer shall continue to be liable for any assessments into said fund on account of any compensation payments made by him or her on his or her account during such fiscal year, and the security fund, created under the provisions of section one hundred seven of this chapter, shall, in the event of the insolvency of any insurance company, be liable for any assessments that would have been made against such company except for its insolvency. No assessment shall be payable from the aggregate trust fund, created under the provisions of section twenty-seven of this article, but such fund shall continue to be liable for all compensation that shall be payable under any award or order of the board, the commuted value of which has been paid into such fund. Such assessments when collected shall be deposited with the commissioner of taxation and finance for the benefits of such fund, Such assessments shall not constitute an element of loss of the purpose of establishing rates for workers' compensation insurance but shall for the purpose of collection be treated as separate costs by carriers. All insurance carriers and the state insurance fund, shall collect such assessments from their policyholders through a surcharge based on premium in accordance with rules set forth by the New York compensation insurance rating board, as approved by the superintendent of insurance. Such surcharge shall be considered as part of premium for purposes prescribed by law including, but not limited to, computing premium tax, reporting to the superintendent of insurance pursuant to section ninety-nine of this chapter and section three hundred seven of the insurance law, determining the limitation of expenditures for the administration of the state insurance fund pursuant to section eighty-eight of this chapter and the cancellation by an insurance carrier, including the state insurance fund, of a policy for non-payment of premium. The provisions of this paragraph not apply with respect to the policies containing coverage pursuant to subsection (j) of section three thousand four hundred twenty of the insurance law relating to every policy providing comprehensive personal liability insurance to a one, two, three or four family owner-occupied dwelling. The state insurance fund shall, on or before April first, nineteen hundred ninety-four, notify its insureds that such assessments shall be, for the purpose of recoupment, treated as separate costs for the purpose of premiums billed on and after October first, nineteen hundred ninety-four.


For the purposes of this paragraph, except as otherwise provided, the term "insurance carrier" shall include only stock corporations, mutual corporations and reciprocal insurers authorized to transact the business of workers' compensation insurance in this state and the term "self-insurer" shall include any employer or group of employers permitted to pay compensation directly under the provisions of subdivision three, three-a or four of section fifty of this chapter.
The commissioner of taxation and finance is hereby authorized to receive and credit to such special disability fund any sum or sums that may at any time be contributed to the state of the United States of America under any act of congress, or otherwise, to which the state may be or become entitled by reason of any payments made out of such fund.

The commissioner of taxation and finance shall be the custodian of said fund and shall invest any surplus or reserve moneys thereof in securities which constitute legal investments for savings banks under the laws of this state and in the interest bearing certificates of deposit of a bank or trust company located and authorized to do business in this state or of a national bank located in this state secured by a pledge of direct obligations of the United States or the state of New York in an amount equal to the amount of such certificates of deposit, and may sell any of the securities or certificates of deposit in which such fund is invested if necessary for the proper administration or in the best interest of such fund. Disbursements from such fund as provided by this subdivision shall be made by the commissioner of taxation and finance upon vouchers signed by the chair of the board.

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Section 14(6)

14(6). If the injured employee is concurrently engaged in more than one employment at the time of injury, the employee's average weekly wages shall be calculated upon the basis of wages earned from all concurrent employments covered under this chapter. The employer in whose employment the employee was injured shall be liable for the benefits that would have been payable if the employee had had no other employment. Any additional benefits resulting from the increase in average weekly wages due to the employee's concurrent employments shall be payable in the first instance by the employer in whose employment the employee was injured and shall be reimbursed by the special disability fund created under subdivision eight of section fifteen of this article. The employer in whose employment the employee was injured shall be liable for all medical costs.

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Section 25a

25a. Procedure and payment of compensation in certain claims: limitation of right to compensation.

1. Notwithstanding other provisions of this chapter, when an application for compensation is made by an employee or for death benefits in behalf of the dependents of a deceased employee, and the employer has secured the payment of compensation in accordance with section fifty of this chapter, (1) after a lapse of seven years from the date of the injury or death and claim for compensation previously has been disallowed or claim has been otherwise disposed of without an award of compensation, or (2) after a lapse of seven years from the date of the injury or death and also a lapse of three years from the date of the last payment of compensation, or (3) where death resulting from the injury shall occur after the time limited by the foregoing provisions of (1) or
(2) shall have elapsed, subject to the provisions of section one hundred and twenty-three of this chapter, testimony may be taken, either directly or through a referee and if an award is made it shall be against the special fund provided by this section. Such an application for compensation or death benefits must be made on a form prescribed by the chairman for that purpose and must, if a change in condition is claimed, be accompanied by a verified medical or surgical report setting forth facts on which the board may order a hearing. Any award which shall be made against such special fund after the effective date of this act upon such an application for compensation or death benefits shall not be retroactive for a period of disability or for death benefits longer than the two years immediately preceding the date of filing such application.

2. Claims for further services or treatment rendered or supplies furnished as required by section thirteen hereof shall be paid from such fund when such service, treatment or supplies shall be authorized by the chairman. In cases where a surgical operation has previously been authorized by the board pursuant to the provisions of subdivision five of section thirteen-a of this chapter, no further authorization therefor by the chairman under this section shall be required. The provisions of this chapter with respect to procedure and the right to appeal shall be preserved to the claimant and to the employer originally liable for the payment of compensation and to such fund through its representative as hereinafter provided.

3. Any awards so made shall be payable out of the special fund heretofore created for such purpose, which fund is hereby continued and shall be known as the fund for the reopened cases. The employer, or, if insured, his insurance carrier shall pay into such fund, or, in the case of awards made on or after July first, nineteen hundred sixty-nine, either into such fund or the uninsured employers' fund under section twenty-six-a of this chapter in accordance with the provisions thereof, for every case of injury causing death for which there are no persons entitled to compensation the sum of three hundred dollars where such injury occurred prior to July first, nineteen hundred forty and the sum of one thousand dollars where such injury shall occur on or after said date and prior to April first, nineteen hundred forty-five, and the sum of fifteen hundred dollars where such injury shall occur on or after April first, nineteen hundred forty-five and prior to September first, nineteen hundred seventy-eight and the sum of three thousand dollars where such injury shall occur on or after September first, nineteen hundred seventy-eight, and in each case of death resulting from injury sustained on or after July first, nineteen hundred forty and prior to September first, nineteen hundred seventy-eight, where there are persons entitled to compensation but the total amount of such compensation is less than two thousand dollars exclusive of funeral benefits, the employer, or, if insured, his insurance carrier, shall pay into such fund, or, in the case of awards made on or after July first, nineteen hundred sixty-nine and prior to September first, nineteen hundred seventy-eight, either into such fund or the uninsured employers' fund under section twenty-six-a of this chapter in accordance with the provisions thereof, the difference between the sum of two thousand dollars and the compensation, exclusive of funeral benefits, and in each case of death resulting from injury sustained on or after September first, nineteen hundred seventy-eight, the employer, or if insured, his insurance carrier shall pay into such fund or the uninsured employers' fund under section twenty-six-a of this chapter in accordance with the provisions thereof, the difference between the sum of five thousand dollars and the compensation, exclusive of funeral benefits actually paid to or for the dependents of the deceased employee together with any expense charge required by section twenty-seven of this chapter; provided, however, that where death shall occur subsequent to the periods limited by subdivision one of this section no payment into such special fund nor to the special fund provided by subdivision nine of section fifteen nor to the uninsured employers' fund provided by section twenty-six-a of this chapter shall be required. In addition to the assessments made against all insurance carriers for the expenses of administering the workmen's compensation law provided for under the provisions of section one hundred and fifty-one of this chapter, and the payments above provided, the employer, or, if insured, his insurance carrier, shall pay the sum of five dollars into said fund for each case in which in an award is made pursuant to the provisions of paragraphs a to s inclusive of subdivision three of section fifteen of this chapter, by reason of injury sustained between July first, nineteen hundred forty and June thirtieth, nineteen hundred forty-two, both date inclusive, and the sum of ten dollars for each case by reason of injury sustained between July first, nineteen hundred forty-two and June thirtieth, nineteen hundred fifty both dates inclusive, which payment shall be in addition to any payment of compensation to the injured employee as provided in this chapter.

There shall be maintained to the special fund at all times assets at least equal in value to the sum of (1) the value of awards charged against such fund, (2) the value of all claims that have been reopened by the board as a charge against such fund but as to which awards have not yet been made, (3) effective January first, nineteen hundred seventy-one, the total supplemental benefits paid from such fund as reimbursement pursuant to subdivision nine of this section during the calendar year immediately preceding, and (4) a reserve equal to ten percent of the sum of items (1) and (2). For the purpose of accumulating funds for the payment of supplemental benefits pursuant to subdivision nine of this section, the chairman shall impose against all carriers an assessment in the sum of five million dollars to be collected in the respective proportions established in the fiscal year commencing April first, nineteen hundred sixty-eight, under the provisions of section one hundred fifty-one of this chapter for each carrier, Annually, as soon as practicable after January first in each year, the chairman shall ascertain the condition of the fund and whenever the assets shall fall below the prescribed minimum as herein provided the chairman shall assess and collect from all insurance carriers, in the respective proportions established in the prior fiscal year under the provisions of section one hundred fifty-one of this chapter for each carrier for each carrier, an amount sufficient to restore the fund to the prescribed minimum. The chairman before making an assessment as herein provided shall give thirty days' notice to the representative of the fund, designated pursuant to subdivision five of this section, that an itemized statement of the condition of the fund is open for his inspection. The superintendent of insurance may examine into the condition of the fund at any time on his own initiative or on request of the chairman or representative of the fund.

3. Such assessment and the payments made into said fund shall not constitute an element of loss for the purpose of establishing rates for workers' compensation insurance as provided in the insurance law but shall for the purpose of recoupment be treated as separate costs by carriers. Carriers shall assess such costs on their policyholders in accordance with rules set forth by the New York compensation insurance rating board, as approved by the superintendent of insurance. 3(1993,chgd, by chap. 729, eff. 12/27/93.)

The provisions of this subdivision shall not apply with respect to policies containing coverage pursuant to subdivision four-a of section one hundred sixty-seven of the insurance law relating to every policy providing comprehensive personal liability insurance on a one, two, three or four family owner-occupied dwelling.

4. The commissioner of taxation and finance shall be the custodian of such special fund for reopened cases and shall invest any surplus monies thereof in securities which constitute legal investments for savings banks under the laws of this state and in interest bearing certificates of deposit of a bank or trust company located and authorized to do business in this state or of a national bank located in this state secured by a pledge of direct obligations of the United States or of the state of New York in an amount equal to the amount of such certificates of deposit, and may sell any of the securities or deposit of deposit in which such fund is invested, if necessary for the proper administration or in the best interest of such fund. Disbursements from such fund for compensation provided by this section shall be paid by the commissioner of taxation and finance upon vouchers signed by the chairman.

The commissioner of taxation and finance, as custodian of such fund, annually as soon as practicable after January first, shall furnish to the chairman a statement of the fund, setting forth the balance of monies in the said fund as the beginning of the year, the income of the fund, a summary of payments out of the fund on account of compensation ordered to be paid by the board, medical and other expense, and all other charges against the fund, and setting forth the balance of the fund remaining to its credit on December thirty-first. Such statement shall be open to public inspection in the office of the chairman and a copy thereof shall be transmitted by the chairman to the superintendent of insurance. The superintendent of insurance may examine into the condition of such fund at any time on his own initiative or on request of the chairman or representative of the fund. He shall verify the receipts and disbursements of the fund, and shall ascertain the liability of the fund upon all cases in which awards of compensation have been made and charged against said fund and shall render a report of such facts to the chairman. Such report shall also be open to the public inspection in the office if the chairman.

5. When an application for compensation is made under this section, the chairman shall appoint a representative such fund in such proceedings and insofar as practicable, such representative shall be a person designated by the employer originally liable for the payment of compensation, or his insurance carrier, but whenever it shall appear to the chairman that through any committee, board or organization or representative of the interest of the insurance carriers an attorney has be appointed to act for and on behalf of such carriers generally to represent such fund in any proceedings brought hereunder the chairman shall designate such attorneys as the representative of the fund in proceedings brought to enforce a claim against such fund. Such representative may apply to the chairman for authority to hire such medical or other experts and to defray the expense thereof and of such witnesses as are necessary to proper defense of the application within an amount in the discretion of the chairman and, if authorized, it shall be a charge against the special fund provided herein.

6. Notwithstanding any other provision of this chapter, no award of compensation or death benefits shall be made against said special fund or against an employer or an insurance carrier where application therefor is made after lapse of eighteen years from the date of the injury or death and also a lapse of eight years from the date of the last payment of compensation.

7. For the purposes of this section the date of the last payment of compensation shall be deemed to mean the date of actual payment of the last installment of compensation previously awarded; provided, however, that where the case is disposed by the payment of a lump sum, the date of last payment for the purpose of this section shall be considered as the date to which the amount paid in the lump sum settlement would extend if the award had been made on the date the lump sum payment was approved at the maximum compensation rate which is warranted by the employee's earning capacity as determined by the board under section fifteen of this chapter.

8. The provisions of this section shall not apply to any open case pending before the board on April twenty-fourth, nineteen hundred thirty-three or to any closed case in which an application for reopening was received prior to such date, or to awards for deficiency compensation made pursuant to section twenty-nine of this chapter, nor shall it apply during the pendency of an appeal provided for by section twenty-three of this chapter; provided, however, that such provisions shall be retroactive in effect except as to payments into the special funds provided for an employer his insurance carrier, and except as otherwise herein provided.

9.+(a) Notwithstanding any other provision of this chapter, every employee who is receiving workers' compensation under this chapter for a permanent and total disability resulting from an accidental injury or occupational disablement which occurred to prior to January first, nineteen hundred seventy-nine and every widow or widower who is receiving death benefits under this chapter on account of the death of his or her spouse prior to January first, nineteen hundred seventy-nine shall receive supplemental benefits upon application therefor to the board, which shall be payable in the first instance by the employer or its insurance carrier in accordance with the provisions of this subdivision. These supplemental benefits shall commence of July first, nineteen hundred ninety and shall continue during the period of such permanent total disability or entitlement to death benefits.

+(b) If such employee, widow or widower is receiving the statutory maximum benefit in effect at the time of the accidental injury or death, the supplement benefit shall be an amount which, when added to the regular benefit established for the case, shall equal the maximum weekly benefit in the effect for a permanently totally disabled employee, widow or widower whose claim arose on January first, nineteen hundred seventy-nine.

+(c) If such employee, widow or widower is receiving a weekly benefit which is less than the statutory maximum benefit which was in effect on the date of the accidental injury or death, the supplemental benefit shall be an amount equal to the difference between the regular benefit being received and a percentage of the maximum benefit in effect on January first, nineteen hundred seventy-nine, determined by multiplying the latter benefit by a fraction, the numerator of which is the regular benefit and the denominator of which is the statutory maximum benefit in effect at the time of the accidental injury or death.

+(d) In the event the supplemental benefit computed under this subdivision amounts to less than five dollar, then the supplemental benefit allowed shall be a minimum of five dollars, less the amount, if any, by which the combination of such supplemental benefit and the regular benefit exceeds the maximum weekly benefit in effect for a permanently totally disabled employee, widow or widower whose claim arose on January first, nineteen hundred seventy-nine.
+(1990, chgd. by chap. 924, eff. 7/1/90.)

(e)The employer or his insurance carrier paying the supplemental benefits required under this subdivision shall claim reimbursement for each case from the reopened cases fund under this section, commencing one year from the date of the first such payment and annually thereafter while such supplemental payments continued, on a form prescribed by the chairman.

(f) The special disability fund created under subdivision eight of section fifteen and the reopened cases fund created under section twenty-five-a and the aggregate trust fund created under section twenty-seven of this chapter shall be deemed to be insurance carriers for purposes of this subdivision, other than the payment of the assessment under the provisions of subdivision three of this section.

(g) Whenever payment of the supplemental benefits prescribed hereunder is not made by the insurance carrier by reason of the insolvency of such insurance carrier, or in the case a self-insurer, by reason of the insolvency of such self-insurer or the discontinuance of its operations, such payment shall be made directly out of the reopened cases fund under this section by the commissioner of taxation and finance upon vouchers approved by the chairman of the workmen's compensation board.

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