NY Work Comp L § 32 (2021)
2021 New York Laws WKC - Workers' Compensation Article 2 - Compensation 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.