Section 21.8 Workers' Compensation Leave - February 10, 1989
TO: State Departments and Agencies
It has come to our attention that agencies have received Workers' Compensation Board Notices of Decision which incorrectly attempt to pay the employee/claimant directly for periods of disability occurring after the first 39 weeks, which were covered by the supplemental pay program, when the employee has charged leave accruals. The State Insurance Fund is working with the Workers' Compensation Board to resolve this misunderstanding. In the meantime, the following information should help in dealing with this problem.
Employees subject to the workers' compensation supplemental pay benefit (those whose work-related illness or injury occurred on or after April 1, 1986 in Administrative Services, Institutional Services, Operational Services, Professional, Scientific and Technical Services and Rent Regulations Services Units and on or after September 1, 1986 who are designated Managerial/Confidential) are eligible to charge leave credits, if still disabled, after exhaustion of the nine month (39 week) supplemental pay benefit. Such leave credits charged after 39 weeks of absence must be restored to an employee when an award of compensation has been made and credited to the State for periods of absence during which the credits were used. At this point the employee has received all workers' compensation benefit entitlements including full salary and restoration of leave credits. Monetary awards for this post 39 week period, therefore, should properly be credited to New York State as the employer, not to the employee.
To help prevent the Board from making incorrect assumptions about this time period, communication between the State Insurance Fund and the employing agency is essential. Agencies must provide the State Insurance Fund with confirmation that credits will be restored for compensable absences. This information can then be presented by the Fund at the Compensation Board hearing. It is important to remember that the agency does not have the option to refuse restoration of leave credits used in connection with compensable absences once an award has been made; such credits are restored even if the employee has separated from State service.
If your agency does receive a Notice of Decision which directs payment to the employee for periods when leave credits were charged, contact the State Insurance Fund immediately for clarification. The State Insurance Fund will take action to have the Notice of Decision changed. The agency is not obligated to restore credits until receipt of a corrected Notice of Decision; however, the agency is obligated to follow-up with the Fund to ensure that a copy of the corrected notice is received.
Please direct any questions on this issue or other workers' compensation benefit problems to the Employee Relations Section of this Department at (518) 457-5167.