Review of Workers' Compensation Law 15-8 (2)

Although Special Funds 15-8(d) is funded by all carriers and self-insureds, who write policies and have claims in New York, the obligation of the Special Funds representative is to resist liability unless the claim for '15-8 is timely and properly filed and fully documented.

Basic Elements of Proof to Secure 15-8(d) Reimbursement

To obtain 15-8(d) reimbursement, the carrier or employer MUST PROVE:

1. Claimant had a pre-existing permanent physical (or mental) impairment that hindered job potential (Sturtevant v. Broome County, 188 A.D.2d 893).
2. A subsequent injury arising out of and in the course of employment;
3. And a permanent disability caused by both conditions which is materially and substantially greater than what would have been caused solely by the second injury alone. [N.B. If no coverage to employer, NO 15-8(d).]

History Behind the Legislative Purpose for the Law:

The history of Workers' Compensation Law '15-8 was to encourage employers to hire the handicapped or disabled Vets, with the under-standing that after 104 weeks of payments, the payment of compensation or medical benefits would be reimbursed from Special Funds, and the "liability" would thus be spread among all employers and carriers doing business in New York State.

In reality, some carriers and/or employers are more successful in securing 15-8(d) than others because of a number of factors; i.e., thorough documentation and investigation; timely and proper filing of the C-250; willingness to negotiate a number of claims in pre-trial conferences--giving up the tenuous or poor claims while securing concession on the more important files; utilizing a credible medical examiner to document prior permanent physical impairment and M&S.

Note: Section 15-8(d) does NOT apply to a permanently and totally disabled claimant whose disability was caused solely by the compensable injury on which the '15-8 claim is filed. It does apply to a claimant who may be found to be totally industrially disabled as a result of the prior permanent physical impairment together with the effects of the compensable injury on which the '15-8 claim is filed.

How to File:

1. The C-250 form must be utilized. A letter or hand written document will not be acceptable. (See Loguidice v. DIC Underhill & Palmieri, 72 A.D.2d 657).
2. The C-250 must be filed with the Workers' Compensation Board. Mailing is not filing. (Stern v. Electrol, Inc., 18 A,.D.2d 1117). We recommend filing with a date stamp of a copy for your file, or mailing by certified mail, return receipt requested.

When to File:

1. The C-250 must be filed within 104 weeks of disability (not from date of accident, unless the date of accident and disability are the same). Disability means date of medical treatment or lost time (financial disability), whichever comes first. (Napolitano v. A. Christen Realty, 28 A.D.2d 647). If there is a consequential injury, remember, the time to file (104 weeks) runs from the date of original injury, not the consequential injury (Webb v. Norwich Knitting Co., 284 A.D. 754).
2. There are exceptions to the 104 week rule:
   1. If the case is CLOSED WITHOUT A FINDING OF PERMANENCY, then reopened, the time to file a C-250 is extended to any period but before a finding of permanency. (Burch v. Hawkins, 9 A.D.2d 6).

      However, this exception only applies if the prior closing is a final closing, eg. a closing pending third-party action, or closed pending receipt of up to date medical are not regarded as FINAL CLOS-INGS. Thus, we recommend that when cases are closed, the hearing representa-tive or attorney not consent to a contingent or conditional closing such as the above examples. [N.B. This also applies to '25-a protec-tion].

      Also, the case must remain closed for 30 days from filing of the decision for it to be regarded as a final closing (eg. claimant absent at the hearing, case closed for failure to prosecute, only to have the claimant write in for a hearing explaining his absence due to car problems, etc. The case will be immediately restored, and the closing rescinded).

   2. The second exception is filing the C-250 before entry of the decision by the Board (eg. the filing is after the Board awards a schedule loss but before the Board issues an amended or corrective decision, the filing will be regarded as timely). (Kaplan v. Model Iron & Aluminum Corp., 279 A.D. 694).

Our Legal Recommendations and Observations:

1. Investigate every file for 15-8(d) purposes and file the C-250 even for deceptively minor-type claims (they can evolve into a permanent nightmare if you are lulled into late filing).
2. Remember that '15-(7), which permits apportionment of liabil-i-ty, is separate and distinct from '15-8(d). The Laws of 1992, Chapter 545, permits apportionment of liability within a single claim by agreement, between the Special Funds, carrier, self-insured or employ-er.
3. Section 15-8(d) was amended, effective July, 1987, to totally eliminate any requirement of knowledge of the prior physical impair-ment for the employer.
4. It is absolutely imperative that you remind your independent medical examiner when specifying the standard M&S statement, that he or she must now include their professional opinion that such a prior permanent physical impairment would have hindered the claimant's job potential. (Sturtevant case, supra., see also Grieco v. Grieco, 52 A.D.2d 1011).
5. Lately, Special Funds representatives have been encouraged to negotiate apportionment of reimbursement (see B above). We recommend that you exercise good claims evaluation before such a concession. Do it only on questionable cases, or when packaging a number of cases (some good, some bad), in which you only hope to secure '15-8(d).

6. The employer or carrier is not obligated to seek or secure appor-tionment against a prior disability or claim, to be awarded '15-8(d) (despite the usual argument of some Special Funds representa-tives). This litigation can be very time consuming and costly. It is entirely voluntary on your part to pursue such apportionment. While it may certainly enhance your 15-8(d) chances, it is not a prerequi-site to a finding of 15-8(d). Weigh the cost against the benefit.
7. Identify the problems with your '15-8(d) application early by means of a pre-trial conference with Special Funds. Thereafter, the efforts at trial can focus on those items of proof as part of the general case issues instead of waiting until permanency is found. If you wait, you may have to recall a physician, lay witness etc., all at additional expense.
8. As soon as you file the C-250, seek out the assistance of the claimant's attorney or representative, or the unrepresented claimant, and advise them of your needed proof and the value of their cooperation to secure '15-8(d). It is much better to have a cooperative "adversary" if they know you are not trying to adversely affect them (eg. remember that apportionment issue referred to above?). All too often, the subject is not raised until cross-examination of the claimant or his physician, and the carrier gets "shot down" because the claimant or his doctor will deny any "disability" from his prior physical impairment. With this advice, we have secured many favorable decisions on otherwise "difficult" cases.
9. In our opinion, the employer or carrier has a fiduciary and ethical obligation to Special Funds not to "roll over" or "compromise" with a claimant for a higher rate or a longer disability as a "quid pro quo" to their cooperation on '15-8(d). It has been known to happen. If Special Funds learns of this activity, your credibility, and the willingness of Special Funds to negotiate resolution of issues, will cease to exist. We strongly recommend against such questionable tactics.

In summary, Workers' Compensation Law '15-8(d) can be extremely important in the defense of serious compensation claims. The extra effort which it requires is well worth the time if the carrier or employer recovers tens of thousands of dollars in reimbursement. Those clients who put in this extra effort will be rewarded with increased success in reimbursement claims, reduction of reserve costs, and mitigation of serious injury claims. We hope that this service has been of assistance to you.