N.Y. Workers' Compensation Law § 32: Waiver agreements

§ 32. Waiver agreements. No agreement or release except as otherwise

provided in this chapter by an employee to waive his right to

compensation under this chapter shall be valid.

(a) Whenever a claim has been filed, the claimant or the deceased

claimant's dependents and the employer, its carrier, the special

disability fund as set forth in subdivision (e) of this section, or the

aggregate trust fund, if the board has directed that the present value

of any unpaid compensation be paid into such fund pursuant to section

twenty-seven of this article, may enter into an agreement settling upon

and determining the compensation and other benefits due to the claimant

or his or her dependents. The agreement shall not bind the parties to

it, unless it is approved by the board. Such agreements, when so

approved, notwithstanding any other provisions, shall be final and

conclusive upon the claimant, the claimant's dependents, the employer,

its insurance carrier, the aggregate trust fund and the special

disability fund. Every insurance carrier as defined in subdivision

twelve of section two of this chapter shall offer each claimant the

opportunity to enter into an agreement settling upon and determining the

compensation and other benefits due, in the case of disability, within

two years after the date the claim was indexed by the board or six

months after the claimant is classified with a permanent disability,

whichever is later, and in the case of death, within six months after

entitlement to benefits is established for all beneficiaries. The offer

made by the insurance carrier shall clearly state what portion of the

offer is (i) for compensation as defined in subdivision six of section

two of this chapter, if any; (ii) for medical benefits, including

prescription medicine, if any; and (iii) for the fee of the attorney or

licensed representative, if any. If a claimant is represented by an

attorney or licensed representative, the insurance carrier shall present

such offer to such legal representative. If a claimant is not

represented by an attorney or a licensed representative, the insurance

carrier shall, in addition to the offer to enter into a settlement

agreement, provide the claimant with a statement of his or her rights,

obligations and potential liability if the offer is accepted.

(b) The agreement shall be approved by the board in a decision duly

filed and served unless:

(1) the board finds the proposed agreement unfair, unconscionable, or

improper as a matter of law;

(2) the board finds that the proposed agreement is the result of an

intentional misrepresentation of material fact; or,

(3) within ten days of submitting the agreement one of the interested

parties requests that the board disapprove the agreement.

(c) A decision duly filed and served approving an agreement submitted

to the board shall not be subject to review pursuant to section

twenty-three of this article. However, a decision duly filed and served

disapproving an agreement submitted to the board is subject to review

pursuant to section twenty-three of this article. If the board

disapproves of an agreement it shall duly file and serve a notice of

decision setting aside the proposed agreement.

(d) An agreement for compensation and other benefits covered by this

chapter may be modified at anytime by agreement of all interested

parties provided it is approved by the board.

(e) The chair shall establish an office under his or her supervision

to be known as the "waiver agreement management office," to negotiate

and seek board approval for waiver agreements on behalf of the special

disability fund. The office shall operate in accordance with guidelines

or directives that the chair may issue, as approved by the special

disability fund advisory committee, or in the absence of such guidelines

or directives, using such discounting factors as the office determines

are in the financial interest of the special disability fund. The waiver

agreement management office on behalf of the special disability fund may

enter into a waiver agreement with a claimant only when the special

disability fund has been found liable by the board to reimburse the

claimant's employer, insurance carrier or the state insurance fund.

Notwithstanding any other provisions of law, no consultation or approval

of any employer, insurance carrier, self-insurer or the state insurance

fund shall be required before such office may enter into any waiver

agreement, or before the board may approve such waiver agreement. The

chair may, in his or her discretion, and as approved by the special

disability fund advisory committee, terminate the operation of the

waiver agreement management office, if he or she believes it no longer

serves the interest of the special disability fund.

(f) A claimant's executed waiver agreement with the waiver agreement

management office shall be final and conclusive upon the claimant, the

claimant's dependents, and any employer, self-insurer, insurance

carrier, the state insurance fund and the special disability fund as to

all claims by the claimant, and as to any claim or request for

reimbursement from the special disability fund for payments not yet

made. The waiver agreement management office shall give written notice

to any employer, insurance carrier or the state insurance fund entitled

to receive reimbursement from the special disability fund in regard to

any claimant, of any waiver agreement signed by the office with such

claimant within fourteen days of submitting the waiver agreement to the

board for approval.

(g) Nothing in this section shall prohibit any insurance carrier,

employer, the state insurance fund, or the waiver agreement management

office on behalf of the special disability fund from jointly entering

into a waiver agreement with a claimant, by which the joint signatories

may apportion responsibility for making any payments required under the

agreement. The agreement shall set forth the obligations of the

signatories to make such payments, and shall identify, as to each

obligation thereunder: (1) the signatory that has the legal obligation

to carry out that provision, or (2) that all signatories are jointly and

severally liable under the provision.

(h) Neither the establishment of the waiver agreement management

office, nor any action taken by that office, shall serve as grounds for

the board's disapproval of any waiver agreement to which the office is

not a party, or otherwise permit any party to withdraw from such a

waiver agreement.

(i) (1) The waiver agreement management office may contract with an

insurance carrier, self-insured employer, state insurance fund or any

third party to assume liability for, manage, administer, or settle

claims on its behalf, so long as (A) such contract is approved by the

special disability fund advisory committee and (B) such party shall

agree to be subject to any guidelines or directives as the chair may

issue.

(2) The chair may, with approval of the special disability fund

advisory committee and on such terms as the committee deems appropriate,

procure one or more private entities to assume the liability for and

manage, administer, or settle all or a portion of the claims in the

special disability fund including, without limitation, by obtaining "an

assumption of workers' compensation liability insurance policy" as

defined in subdivision three of section fifty of this chapter. Any such

policy shall expressly provide and, notwithstanding any other provision

of law, operate to release from any further liability (i) the special

disability fund and (ii) the insurance carrier, including as the case

may be the state insurance fund, originally liable for any claim covered

by the assumption of workers' compensation liability insurance policy

securing such further and future contingent liability as may arise from

any such claim, including from prior injuries to employees and be

incurred by reason of any change in the condition of such employees for

payment of additional compensation. Notwithstanding any other provisions

of law, no consultation or approval of any employer, insurance carrier,

self-insurer or the state insurance fund shall be required before such

office may enter into any such policy of waiver agreement, or before the

board may approve such waiver agreement. Any such procurement shall be

conducted in accordance with state finance law, except as otherwise set

forth below. The chair shall not award any contract that has not been

approved by the special disability fund advisory committee.

Notwithstanding the foregoing, the chair of the workers' compensation

board may, if approved by the special disability fund advisory

committee, and on such terms as the committee deems appropriate:

(A) waive any informality in a bid, and either reject all bids and

again advertise for bids, or interview at least two responsible

qualified bidders and negotiate and enter into a contract with one or

more of such bidders; or

(B) group claims to be assigned, in whole or in part, based on the

insurance carrier, self-insured employer or state insurance fund that is

receiving or will receive reimbursement on those claims from the second

disability fund. Such grouping shall be permissible notwithstanding that

any insurance carrier may have greater access to information, or may be

able to provide better terms, in regard to claims so grouped.

(3) Any policy executed by the chair pursuant to this section shall be

in the form of an assumption of workers' compensation liability

insurance policy securing such further and future contingent liability

as may arise from any claim covered by such policy, including prior

injuries to workers and be incurred by reason of any change in the

condition of such workers warranting the board making subsequent awards

for payment of additional compensation. Such policy shall be in a form

approved by the superintendent of financial services and issued by the

state insurance fund or any insurance company licensed to issue this

class of insurance in this state, or deemed acceptable as an issuer upon

application by the chair to the superintendent as specified in

subdivision three of section fifty of this chapter. In the event that

such policy is issued by an insurance company other than the state

insurance fund, then said policy shall be deemed of the kind specified

in paragraph fifteen of subsection (a) of section one thousand one

hundred thirteen of the insurance law and covered by the workers'

compensation security fund as created and governed by article six-a of

this chapter. Such policy shall only be issued for a single complete

premium paid in advance and in an amount deemed acceptable by the chair

and the superintendent of financial services. When issued such policy

shall be noncancellable without recourse for any cause during the

continuance of the liability secured and so covered.

(4) Notwithstanding any other provision of this article, the waiver

agreement management office may request in writing any information

relevant to its entry into or management of waiver agreements from (A)

any insurance carrier, employer, or the state insurance fund, if that

entity has submitted a claim for reimbursement from the special

disability fund as to the claimant to whom the information relates; or

(B) the special funds conservation committee. The party to whom the

request is made shall provide the requested information within fourteen

days of the request, unless before that date it files an objection with

the board to any information which is subject to a recognized privilege

or whose production is otherwise barred by law. The objecting party

shall provide the requested information within five business days of the

board's rejection of its objection.

(5) No carrier, self-insured employer or the state insurance fund

shall assume the liability for, or management, administration or

settlement of any claims under this section on which it holds reserves,

beyond such reserves as are permitted by regulation of the

superintendent of financial services for purposes of this provision. No

carrier may assume liability for any claims in the special disability

fund under this paragraph unless the carrier maintains, on a stand alone

basis, separate from its parent or any affiliated entities, an

interactive financial strength rating from a nationally recognized

statistical rating organization that is considered secure or deemed

acceptable by the special disability fund advisory committee.

(6) The director of the budget shall notify in writing the chairs of

the senate finance committee and the assembly ways and means committee

of any plans to transfer all or a portion of the portfolio of claims

determined to be eligible for reimbursement from the special disability

fund or to enter into an assumption of workers' compensation liability

insurance policy, not less than forty-five days prior to the

commencement of such process. At any time borrowing is anticipated to

settle claims, the chief executive officer of the dormitory authority of

the state of New York and the director of the budget shall provide a

report to the chairs of the senate finance committee and the assembly

ways and means committee on a planned bond sale of the authority and

such report shall include, but not be limited to: (A) the maximum amount

of bonds expected to be sold by the authority in connection with a sale

agreement; (B) the expected maximum interest rate and maturity date of

such bonds; (C) the expected amount of the bonds that will be fixed

and/or variable interest rate; (D) the estimated costs of issuance; (E)

the estimated level or levels of reserve fund or funds, if any; (F) the

estimated cost of bond issuance, if any; (G) the anticipated use or uses

of the proceeds; (H) the maximum expected net proceeds that will be paid

to the state as a result of the issuance of such bonds; and (I) the

process to be used to select parties to the transaction. Any such

expectations and estimates in the report shall not be deemed a

substantive limitation on the authority of the dormitory authority of

the state of New York.