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SECTION 27
Depositing future payments in the aggregate trust fund
Workers' Compensation (WKC) CHAPTER 67, ARTICLE 2
§ 27. Depositing future payments in the aggregate trust fund. 1. All
payments made into the fund pursuant to the provisions of this section
shall constitute an indivisible and aggregate trust fund except as
hereinafter provided.

2. If an award under this chapter requires payment of death benefits
or other compensation by an insurance carrier or employer in periodical
payments, the board may, in its discretion, at any time, any provision
of this chapter to the contrary notwithstanding, compute and permit or
require to be paid into the aggregate trust fund an amount equal to the
present value of all unpaid death benefits or other compensation in
cases in which awards are made for total permanent or permanent partial
disability for a period of one hundred and four weeks or more, for which
liability exists, together with such additional sum as the board may
deem necessary for a proportionate payment of expenses of administering
the fund so created, including the cost of the actuarial computation by
or on behalf of the board of the present value of the award, and for the
purposes of this section such cases shall be known as discretionary type
cases. If any such award made on or after July first, nineteen hundred
thirty-five, requires payment for total permanent disability resulting
from the loss of both hands, or both arms, or both feet, or both legs,
or both eyes, or of any two thereof, or for permanent partial disability
resulting from loss of an arm, leg, hand, foot or eye, or of death
benefits by an insurance carrier which is a stock corporation or mutual
association, or if any such award made on or after July first, two
thousand seven requires payment for permanent partial disability under
paragraph w of subdivision three of section fifteen of this article by
an insurance carrier which is a stock corporation or mutual association,
which for the purposes of this section shall be known as mandatory type
cases, the board shall immediately compute the present value thereof and
require payment of such amount into the aggregate trust fund, together
with such additional sum as the board may deem necessary for a
proportionate payment of expenses of administering such trust fund
including the cost of the actuarial computation by or on behalf of the
board of the present value of the award provided, however, that where an
employer or his insurance carrier is found to be entitled to
reimbursement from the special disability fund of subdivision eight of
section fifteen, the computation of the present value of the award and
the requirement for payment of such amount into the said trust fund
shall not be mandatory and such cases shall be deemed to be
discretionary type cases; further provided that where an employee
entitled to compensation under this chapter be injured or killed by the
negligence or wrong of another not in the same employ, the computation
of the present value and the requirement for payment of such amount into
the said trust fund shall be held in abeyance until (1) six months have
elapsed from the award of compensation, or in any event not more than
one year after the date of the accident, if the injured employee, or in
case of death, his personal representatives, spouse, parents, dependents
or next of kin, or anyone otherwise entitled to recover damages at
common law or otherwise, on account of such injury or death, have failed
to commence such action, (2) the termination of any such action brought
by the injured employee, or in case of death, his personal
representatives, spouse, parents, dependents or next of kin, or anyone
otherwise entitled to recover damages, at common law or otherwise, on
account of such injury or death, under the provisions of section
twenty-nine of this article.

3. Upon payment by an employer or insurance carrier into the aggregate
trust fund of an amount equal to the present value of all unpaid death
benefits or other compensation under any such award together with such
additional sum as the board may deem necessary for a proportionate
payment of expenses of administering such trust fund including the cost
of the actuarial computation by or on behalf of the board of the present
value of the award, such employer or insurance carrier shall be
discharged from any further liability for payment of such death benefits
or other compensation, and payment of the same as provided by this
chapter shall be assumed by the fund so created.

4. In the event of a review or appeal of any such award the value of
which has not been paid into the aggregate trust fund, if the amount of
award is modified or changed, the employer or insurance carrier shall
pay directly to the claimant compensation due to the date as of which
the present value of future benefits is payable into such fund, and to
the said fund the present value of future benefits, but if the original
award is affirmed, the employer or insurance carrier shall pay to such
fund the present value of the award computed as of the effective date of
the original award and simple interest on such amount at the industry
standard rate, as determined by the superintendent of financial services
by regulation, computed from the date of the original award to the date
that payment is made into such fund, plus simple interest at the rate
provided in section five thousand four of the civil practice law and
rules, on past due payments of compensation to the date of the
affirmance of such award, which past due payment and interest shall be
made directly to the claimant. The foregoing provision shall apply in
the event of such review or appeal regardless of whether the widow or
widower or other parties in interest have died or the widow or widower
remarried subsequent to the date as of which the present value of the
original award was computed. If any award, the present value of which
has been paid into the aggregate trust fund, is subsequently modified or
changed by the board for any reason other than because of subsequent
death or remarriage, the amount equal to the present value of the unpaid
death benefits or other compensation at the effective date of such
modification or change shall be computed on the basis both of the
original award and of the modified or changed award. If such amount is
greater on the basis of the original award, the difference shall be paid
by said trust fund to the employer or insurance carrier minus the cost,
if any, of the actuarial computation made by or on behalf of the board.
If such amount is greater on the basis of the modified or changed award,
the difference shall be paid to said trust fund by such employer or
insurance carrier in addition to the cost, if any, of the actuarial
computation made by or on behalf of the board. In the case of an
accident, occurring on or subsequent to July first, nineteen hundred
thirty-nine, where the present value of an award for permanent total or
permanent partial disability other than award for a definite number of
weeks has been paid into the aggregate trust fund, if an award is made
for death resulting from the injury causing the said disability, the
employer or insurance carrier which paid the present value of said
disability award into such fund shall be entitled to the difference
between the amount paid into such fund and the sum disbursed from such
fund to the injured employee prior to his or her death, plus simple
interest on such difference at the industry standard rate. In the case
of an accident occurring on or subsequent to July first, nineteen
hundred thirty-nine, where the present value of an award for permanent
partial disability for a definite number of weeks has been paid into the
aggregate trust fund, if the injured employee dies prior to the end of
such definite number of weeks, the employer or insurance carrier which
made the said payment into such fund shall be entitled to the present
value of the unexpended disability benefits not payable to beneficiaries
computed on the basis of annuities certain with interest at the industry
standard rate, minus however the cost, if any, of the actuarial
computation made by or on behalf of the board. In the case of a claim
for the death of an employee resulting from an accident occurring on or
subsequent to January first, two thousand one, the present value of an
award paid into the aggregate trust fund shall be calculated based on
the assumption that any child while under the age of twenty-three years
will be enrolled and attending as a full time student in an accredited
educational institution and would thereby be entitled to benefits for
all periods while under the age of twenty-three years. After all such
children reach the age of twenty-three, the aggregate trust fund shall
refund to the carrier which paid such present value into such fund the
portion of such present value representing benefits for which such
children were not actually entitled because they were not enrolled and
attending as a full time student in an accredited educational
institution plus simple interest on such difference at the industry
standard rate.

5. All computations made by the board shall be upon the basis of the
survivorship annuitants table of mortality, the remarriage tables of the
Dutch Royal Insurance Institution and interest at three and one-half per
centum per annum on claims based on accidents occurring up to and
including June thirtieth, nineteen hundred thirty-nine, at three per
centum per annum on claims based on accidents occurring from July first,
nineteen hundred thirty-nine up to and including August thirty-first,
nineteen hundred eighty-three, at six per centum per annum on claims
based on accidents occurring from September first, nineteen hundred
eighty-three up to and including December thirty-first, two thousand and
at the industry standard rate on claims based on accidents occurring
thereafter, except (a) that computations of present values of death
benefits required to be paid into the aggregate trust fund by an
insurance carrier which is a stock corporation or a mutual association
shall be based, in the case of a dependent parent, grandparent, blind or
physically disabled child or spouse, upon said table of mortality
disregarding possible change in or termination of dependency, with
interest at three and one-half per centum per annum on claims based on
accidents occurring up to and including June thirtieth, nineteen hundred
thirty-nine, at three per centum per annum on claims based on accidents
occurring from July first, nineteen hundred thirty-nine up to and
including August thirty-first, nineteen hundred eighty-three, at six per
centum per annum on claims based on accidents occurring from September
first, nineteen hundred eighty-three up to and including December
thirty-first, two thousand and at the industry standard rate on claims
based on accidents occurring thereafter and (b) that computations of
present values of permanent partial disability benefits awarded for a
definite number of weeks shall be on the basis of annuities certain with
interest at three and one-half per centum per annum on claims based on
accidents occurring up to and including June thirtieth, nineteen hundred
thirty-nine, at three per centum per annum on claims based on accidents
occurring from July first, nineteen hundred thirty-nine up to and
including August thirty-first, nineteen hundred eighty-three, at six per
centum per annum on claims based on accidents occurring from September
first, nineteen hundred eighty-three up to and including December
thirty-first, two thousand and at the industry standard rate on claims
based on accidents occurring thereafter.

6. Such aggregate trust fund shall be kept separate and apart from all
other moneys of the state insurance fund, and shall not be liable for
any losses or expenses of administration of the state insurance fund
other than the expenses involved in the administration of such trust
fund including the cost, if any, of the actuarial computations made on
behalf of the board, nor shall the state insurance fund be charged with
the losses or expenses of the aggregate trust fund beyond the amount of
such trust fund. Any portion of such aggregate trust fund may, by order
of the commissioners of the state insurance fund, approved by the
superintendent of financial services, be invested in or loaned on the
pledge of the same securities as provided in section eighty-seven of
this chapter for the investment of the state insurance fund, and the
commissioners may, upon like approval of the superintendent of financial
services, also sell any such securities. Any securities belonging to the
aggregate trust fund may be loaned by the commissioners of the state
insurance fund, with the approval of the superintendent of financial
services, under a security loan agreement as provided by section
eighty-seven of this chapter for securities belonging to the state
insurance fund.

7. For the purpose of securing the solvency of the aggregate trust
fund, there shall be required, in addition to the payments hereinbefore
provided for, a payment on each award, as follows:

(a) In the mandatory type cases based on an accident occurring on or
subsequent to July first, nineteen hundred forty-one up to and including
June thirtieth, nineteen hundred forty-three an amount equal to six per
centum of the present value of each such case paid into such fund;

(b) In the mandatory type cases based on an accident occurring on or
subsequent to July first, nineteen hundred forty-three an amount equal
to ten per centum of the present value of each such case paid into such
fund;

(c) In the discretionary type cases based on an accident occurring up
to and including June thirtieth, nineteen hundred thirty-nine an amount
equal to sixteen per centum of the present value of each such case paid
into such fund;

(d) In the discretionary type cases based on an accident occurring on
or subsequent to July first, nineteen hundred thirty-nine an amount
equal to ten per centum of the present value of each such case paid into
such fund.

Such additional payments shall be required until the surplus of the
fund equals or exceeds one per centum of the total outstanding loss
reserves as shown by three successive annual reports of the fund to the
superintendent of financial services and such additional payment shall
be required as a payment upon each award based on an accident occurring
prior to July first next succeeding the third such annual report, but
not as a payment upon any award based on an accident occurring on or
after said July first; provided, however, that if and when the surplus
of the fund as shown by any annual report thereafter shall be less than
one per centum of the total outstanding loss reserves, then the
additional payments as provided in paragraphs (a), (b), (c) and (d) of
this subdivision shall be resumed and shall be payable upon any award
based on an accident occurring on or after July first next succeeding
the close of the year for which such annual report is made. Thereafter,
the suspension or resumption of additional payments as required by this
subdivision shall be governed by the foregoing provisions. Such loss
reserves shall be computed based upon the tables specified in
subdivision five of this section and interest at a standard to be
determined by the superintendent of financial services by regulation.

8. In the case of a claim concerning which the aggregate trust fund
enters a waiver agreement pursuant to section thirty-two of this
article, the insurance carrier, as defined in subdivision twelve of
section two of this chapter, which paid the present value of the award
for such claim, shall not be entitled to a refund of any portion of the
present value of such award.