Opinion 88-43


This opinion represents the views of the Office of the State Comptroller at the time it was rendered. The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

WORKERS' COMPENSATION -- Self-Insurance (reimbursement of sheriff's personnel account for General Municipal Law, §207-c salary payments)

COUNTY SHERIFF -- Disability (reimbursement of sheriff's personnel account from county's workers' compensation self-insurance fund for General Municipal Law, §207-c salary payments)

COUNTIES -- Fund Transfers (reimbursement of sheriff's personnel account from county's workers' compensation self-insurance fund for General Municipal Law, §207-c salary payments)

GENERAL MUNICIPAL LAW, §§6-j, 207-c; WORKERS' COMPENSATION LAW, §25(4): When deputy sheriffs and county corrections officers are injured in the performance of official duties and are paid their salaries under General Municipal Law, §207-c out of the sheriff's personnel account, the county governing board is not obligated to replenish the sheriff's personnel account by appropriation of workers' compensation benefits which have been paid into the general fund from a self-insurance fund maintained by the county.

This is in reply to your letter with respect to deputy sheriffs and county corrections officers who sustain injuries in the performance of official duties and receive their full salary under General Municipal Law, §207-c. You state that the section 207-c payments are made from moneys appropriated for the personnel expenses of the sheriff's department. You also state that the county is self-insured for workers' compensation. You ask whether, in these circumstances, an amount equal to the injured employee's workers' compensation benefits must be appropriated for personnel expenses of the sheriff's department.

General Municipal Law, §207-c provides that any "policeman" who is injured in the performance of his duties shall be paid by the municipality by which he is employed the full amount of his regular salary or wages until the disability ceases. For purposes of section 207-c, sheriffs, undersheriffs, deputy sheriffs and correction officers of a county sheriff's department are considered to be "policemen" (General Municipal Law, §207-c[1]).

Workers' Compensation Law, §25(4) provides that if an employer has made advance payments of compensation, or has made "payments to an employee in like manner as wages" during any period of disability, the employer shall be entitled to be reimbursed out of unpaid installments of compensation due provided a claim for reimbursement is filed before award of compensation is made. Section 207-c payments are considered advancepayments for purposes of section 25(4) (McKay v Town of West Seneca, 51 AD2d 373, 381 NYS2d 892, dissenting opinion, revd on dissent 41 NY2d 931, 394 NYS2d 637; 1982 Opns St Comp No. 82-92, p 113). Further, it has been held that the provisions of section 25(4) apply in the case of a self-insured employer (Adolf v City of Buffalo Board of Education, 71 AD2d 746, 419 NYS2d 249, affd 50 NY2d 871, 430 NYS2d 44). Of course, when a municipal employer is individually self-insured and maintains its own self-insurance fund, the employer is not reimbursed by an outside party such as an insurance carrier or the State Insurance Fund. In such a situation, Workers' Compensation benefits are paid from the self-insurance fund to the general fund. Thus, a self-insured employer who has made advance payments and has properly filed a claim under section 25(4) would be entitled to retain workers' compensation benefits due, which in effect would be "reimbursement" for the advance payment.

While it is clear that, in accordance with Workers' Compensation Law, §25(4), the county, and not the employee, is entitled to retain the workers' compensation benefits as reimbursement for payments made under General Municipal Law, §207-c, we are aware of no provision of law which requires that such moneys be appropriated to replenish the personnel appropriation from which the section 207-c payments were made. In the absence of any such statutory direction, it is within the discretion of the county governing board whether to appropriate the moneys to replenish the personnel appropriation (see County Law, §§363-366).

October 11, 1988
W. Warren McGreevy, Sheriff
County of Rensselaer