NWCDN Members regularly post articles and summary judgements in workers’ compensations law in your state.
Select a state from the dropdown menu below to scroll through the state specific archives for updates and opinions on various workers’ compensation laws in your state.
Contact information for NWCDN members is also located on the state specific links in the event you have additional questions or your company is seeking a workers’ compensation lawyer in your state.
On May 4, 2016, the Board announced that it has filed a Notice of Appeal to the Court of
Appeals from the decision of the Appellate Division, First Department in American Economy Insurance
Co. et al. v. State of New York, et al, 2016 N.Y. Slip Op. 02924 (First Department 4/14/16). As
reported in our Special Alert of 4/21/16 (below), that decision held that the closure of the Reopened
Case Fund under WCL §25-a as of 1/1/14 was unconstitutional and thus null and void, such that the
§25-a Fund was reopened.
The Board’s appeal effects a stay of the Appellate Division decision, such that the Board will not
adjudicate any claims for transfer of liability to the Reopened Case Fund pending the Court of Appeals
In its Subject No. 046-851 of yesterday, the Board confirmed that it would accept, but hold in
abeyance, any and all applications for transfer of liability to the §25-a Fund, including Requests for
Further Action (RFA-2s) and requests made on the record at hearings, pending decision from the Court
The recommendations made in our 4/21/16 Special Alert remain the same. Whether at hearings
or through RFA-2s, you and your counsel should make claims for transfer of liability to the §25-a Fund
on qualifying cases. This will assure that your requests are timely made and can be pursued later in the
event the Court of Appeals affirms the decision of the Appellate Division reopening the §25-a Fund.
Please contact us if you would like to further discuss any of these developments or if we can
assist you in your efforts to transfer qualifying claims to the Reopened Case Fund.
April 21, 2016
SPECIAL ALERT: APPELLATE COURT REOPENS
WCL §25-A REOPENED CASE FUND
On April 14, 2016, the Appellate Division, First Department in New York City rendered a
decision in American Economy Ins. Company et al. v. State of New York, ___A.D. 3d ___ (1st Dept.
2016) (Index 156923/13). The Court held that the amendment to WCL §25-a [1-a] enacted as part of the
Business Relief Act of 2013, which closed the WCL §25-a Fund to new claims effective January 1,
2014, was unconstitutional.
The Court found that insurance policies issued before October 1, 2013 charged premiums
premised on the assumption that reopened claims may be shifted to the Special Fund for Reopened
Cases under WCL §25-a. For policies issued on or after October 1, 2013, the Department of Financial
Services approved an increase in premiums to cover the additional liability resulting from the closure of
Policies are occurrence based, covering accidents that occur during policy term. A claim for
benefits on a pre-10/1/13 accident made after 1/1/14 would still be covered by the policy in force at the
time of the accident. The premiums paying for that policy assumed that liability for reopened claims
may be shifted to the Reopened Claim Fund under §25-a. The Court agreed that the closure of the §25-a
Fund increased liability on carriers, which they could not recover with increased premiums, creating an
The Court held, therefore, that as to carriers with policies issued before 10/1/13, the closure of
the §25-a Fund constituted an illegal retroactive impairment of an existing contractual obligation and
imposition of unfunded liability. Thus, the Statute (WCL §25-a [1-a]) violated the Contracts and Taking
Clauses of the U.S. Constitution.
The lawsuit was brought solely by insurance carriers and the Court’s ruling specifically applied
only to insurance carriers with policies issued before 10/1/13.
Nevertheless, we submit that, in finding the amendment to §25-a[1-a] to be unconstitutional, the
Court rendered the closure of the Fund null and void. Thus, the §25-a Fund is open and we recommend
that insurance carriers and self-insured employers alike apply for §25-a relief on qualifying cases.
We assume that New York State will appeal the Appellate Division, First Department decision to
the Court of Appeals. Decision by the Court of Appeals cannot be expected for many months.
Meanwhile the Appellate Division decision is the law and the §25-a Fund should be considered
1. Closed cases: Apply to reopen (RFA-2) and make your claim for §25-a relief on any case that
would qualify (greater than 7 years since D/A and 3 years since last payment of indemnity) citing
American Economy Insurance Company.
2. Cases closed with indemnity only WCL §32 Settlements: Apply to reopen and make your
claim to shift medical liability to the §25-a Fund on qualifying cases, citing American Economy Ins. It
is recommended that on these cases in particular you consult with counsel regarding allocation and other
issues before attempting reopening.
3. Cases in which WCB already found §25-a did not apply because of the supposed closure of
the Fund: Consider applying to reopen the claim, citing American Economy Ins., and seeking
reimbursement from the Reopened Case Fund for payments that should have qualified for §25-a relief.
4. Cases in which you did not seek §25-a relief because of assumption the Fund had been
closed 1/1/14: Consider applying to reopen and seeking reimbursement from the Special Fund.
We remain ready and eager to consult with you and assist you in your efforts to transfer your
liability on qualifying claims to the newly revived Reopened Claim Fund under WCL §25-a.