§ 32 — Waiver agreements

§ 32. Waiver agreements. No agreement or release except as otherwise\nprovided in this chapter by an employee to waive his right to\ncompensation under this chapter shall be valid.\n (a) Whenever a claim has been filed, the claimant or the deceased\nclaimant's dependents and the employer, its carrier, the special\ndisability fund as set forth in subdivision (e) of this section, or the\naggregate trust fund, if the board has directed that the present value\nof any unpaid compensation be paid into such fund pursuant to section\ntwenty-seven of this article, may enter into an agreement settling upon\nand determining the compensation and other benefits due to the claimant\nor his or her dependents. The agreement shall not bind the parties to\nit, unless it is approved by the board. Such agreements, when so\napproved, notwithstanding any other provisions, shall be final and\nconclusive upon the claimant, the claimant's dependents, the employer,\nits insurance carrier, the aggregate trust fund and the special\ndisability fund. Every insurance carrier as defined in subdivision\ntwelve of section two of this chapter shall offer each claimant the\nopportunity to enter into an agreement settling upon and determining the\ncompensation and other benefits due, in the case of disability, within\ntwo years after the date the claim was indexed by the board or six\nmonths after the claimant is classified with a permanent disability,\nwhichever is later, and in the case of death, within six months after\nentitlement to benefits is established for all beneficiaries. The offer\nmade by the insurance carrier shall clearly state what portion of the\noffer is (i) for compensation as defined in subdivision six of section\ntwo of this chapter, if any; (ii) for medical benefits, including\nprescription medicine, if any; and (iii) for the fee of the attorney or\nlicensed representative, if any. If a claimant is represented by an\nattorney or licensed representative, the insurance carrier shall present\nsuch offer to such legal representative. If a claimant is not\nrepresented by an attorney or a licensed representative, the insurance\ncarrier shall, in addition to the offer to enter into a settlement\nagreement, provide the claimant with a statement of his or her rights,\nobligations and potential liability if the offer is accepted.\n (b) The agreement shall be approved by the board in a decision duly\nfiled and served unless:\n (1) the board finds the proposed agreement unfair, unconscionable, or\nimproper as a matter of law;\n (2) the board finds that the proposed agreement is the result of an\nintentional misrepresentation of material fact; or,\n (3) within ten days of submitting the agreement one of the interested\nparties requests that the board disapprove the agreement.\n (c) A decision duly filed and served approving an agreement submitted\nto the board shall not be subject to review pursuant to section\ntwenty-three of this article. However, a decision duly filed and served\ndisapproving an agreement submitted to the board is subject to review\npursuant to section twenty-three of this article. If the board\ndisapproves of an agreement it shall duly file and serve a notice of\ndecision setting aside the proposed agreement.\n (d) An agreement for compensation and other benefits covered by this\nchapter may be modified at anytime by agreement of all interested\nparties provided it is approved by the board.\n (e) The chair shall establish an office under his or her supervision\nto be known as the "waiver agreement management office," to negotiate\nand seek board approval for waiver agreements on behalf of the special\ndisability fund. The office shall operate in accordance with guidelines\nor directives that the chair may issue, as approved by the special\ndisability fund advisory committee, or in the absence of such guidelines\nor directives, using such discounting factors as the office determines\nare in the financial interest of the special disability fund. The waiver\nagreement management office on behalf of the special disability fund may\nenter into a waiver agreement with a claimant only when the special\ndisability fund has been found liable by the board to reimburse the\nclaimant's employer, insurance carrier or the state insurance fund.\nNotwithstanding any other provisions of law, no consultation or approval\nof any employer, insurance carrier, self-insurer or the state insurance\nfund shall be required before such office may enter into any waiver\nagreement, or before the board may approve such waiver agreement. The\nchair may, in his or her discretion, and as approved by the special\ndisability fund advisory committee, terminate the operation of the\nwaiver agreement management office, if he or she believes it no longer\nserves the interest of the special disability fund.\n (f) A claimant's executed waiver agreement with the waiver agreement\nmanagement office shall be final and conclusive upon the claimant, the\nclaimant's dependents, and any employer, self-insurer, insurance\ncarrier, the state insurance fund and the special disability fund as to\nall claims by the claimant, and as to any claim or request for\nreimbursement from the special disability fund for payments not yet\nmade. The waiver agreement management office shall give written notice\nto any employer, insurance carrier or the state insurance fund entitled\nto receive reimbursement from the special disability fund in regard to\nany claimant, of any waiver agreement signed by the office with such\nclaimant within fourteen days of submitting the waiver agreement to the\nboard for approval.\n (g) Nothing in this section shall prohibit any insurance carrier,\nemployer, the state insurance fund, or the waiver agreement management\noffice on behalf of the special disability fund from jointly entering\ninto a waiver agreement with a claimant, by which the joint signatories\nmay apportion responsibility for making any payments required under the\nagreement. The agreement shall set forth the obligations of the\nsignatories to make such payments, and shall identify, as to each\nobligation thereunder: (1) the signatory that has the legal obligation\nto carry out that provision, or (2) that all signatories are jointly and\nseverally liable under the provision.\n (h) Neither the establishment of the waiver agreement management\noffice, nor any action taken by that office, shall serve as grounds for\nthe board's disapproval of any waiver agreement to which the office is\nnot a party, or otherwise permit any party to withdraw from such a\nwaiver agreement.\n (i) (1) The waiver agreement management office may contract with an\ninsurance carrier, self-insured employer, state insurance fund or any\nthird party to assume liability for, manage, administer, or settle\nclaims on its behalf, so long as (A) such contract is approved by the\nspecial disability fund advisory committee and (B) such party shall\nagree to be subject to any guidelines or directives as the chair may\nissue.\n (2) The chair may, with approval of the special disability fund\nadvisory committee and on such terms as the committee deems appropriate,\nprocure one or more private entities to assume the liability for and\nmanage, administer, or settle all or a portion of the claims in the\nspecial disability fund including, without limitation, by obtaining "an\nassumption of workers' compensation liability insurance policy" as\ndefined in subdivision three of section fifty of this chapter. Any such\npolicy shall expressly provide and, notwithstanding any other provision\nof law, operate to release from any further liability (i) the special\ndisability fund and (ii) the insurance carrier, including as the case\nmay be the state insurance fund, originally liable for any claim covered\nby the assumption of workers' compensation liability insurance policy\nsecuring such further and future contingent liability as may arise from\nany such claim, including from prior injuries to employees and be\nincurred by reason of any change in the condition of such employees for\npayment of additional compensation. Notwithstanding any other provisions\nof law, no consultation or approval of any employer, insurance carrier,\nself-insurer or the state insurance fund shall be required before such\noffice may enter into any such policy of waiver agreement, or before the\nboard may approve such waiver agreement. Any such procurement shall be\nconducted in accordance with state finance law, except as otherwise set\nforth below. The chair shall not award any contract that has not been\napproved by the special disability fund advisory committee.\nNotwithstanding the foregoing, the chair of the workers' compensation\nboard may, if approved by the special disability fund advisory\ncommittee, and on such terms as the committee deems appropriate:\n (A) waive any informality in a bid, and either reject all bids and\nagain advertise for bids, or interview at least two responsible\nqualified bidders and negotiate and enter into a contract with one or\nmore of such bidders; or\n (B) group claims to be assigned, in whole or in part, based on the\ninsurance carrier, self-insured employer or state insurance fund that is\nreceiving or will receive reimbursement on those claims from the second\ndisability fund. Such grouping shall be permissible notwithstanding that\nany insurance carrier may have greater access to information, or may be\nable to provide better terms, in regard to claims so grouped.\n (3) Any policy executed by the chair pursuant to this section shall be\nin the form of an assumption of workers' compensation liability\ninsurance policy securing such further and future contingent liability\nas may arise from any claim covered by such policy, including prior\ninjuries to workers and be incurred by reason of any change in the\ncondition of such workers warranting the board making subsequent awards\nfor payment of additional compensation. Such policy shall be in a form\napproved by the superintendent of financial services and issued by the\nstate insurance fund or any insurance company licensed to issue this\nclass of insurance in this state, or deemed acceptable as an issuer upon\napplication by the chair to the superintendent as specified in\nsubdivision three of section fifty of this chapter. In the event that\nsuch policy is issued by an insurance company other than the state\ninsurance fund, then said policy shall be deemed of the kind specified\nin paragraph fifteen of subsection (a) of section one thousand one\nhundred thirteen of the insurance law and covered by the workers'\ncompensation security fund as created and governed by article six-a of\nthis chapter. Such policy shall only be issued for a single complete\npremium paid in advance and in an amount deemed acceptable by the chair\nand the superintendent of financial services. When issued such policy\nshall be noncancellable without recourse for any cause during the\ncontinuance of the liability secured and so covered.\n (4) Notwithstanding any other provision of this article, the waiver\nagreement management office may request in writing any information\nrelevant to its entry into or management of waiver agreements from (A)\nany insurance carrier, employer, or the state insurance fund, if that\nentity has submitted a claim for reimbursement from the special\ndisability fund as to the claimant to whom the information relates; or\n(B) the special funds conservation committee. The party to whom the\nrequest is made shall provide the requested information within fourteen\ndays of the request, unless before that date it files an objection with\nthe board to any information which is subject to a recognized privilege\nor whose production is otherwise barred by law. The objecting party\nshall provide the requested information within five business days of the\nboard's rejection of its objection.\n (5) No carrier, self-insured employer or the state insurance fund\nshall assume the liability for, or management, administration or\nsettlement of any claims under this section on which it holds reserves,\nbeyond such reserves as are permitted by regulation of the\nsuperintendent of financial services for purposes of this provision. No\ncarrier may assume liability for any claims in the special disability\nfund under this paragraph unless the carrier maintains, on a stand alone\nbasis, separate from its parent or any affiliated entities, an\ninteractive financial strength rating from a nationally recognized\nstatistical rating organization that is considered secure or deemed\nacceptable by the special disability fund advisory committee.\n (6) The director of the budget shall notify in writing the chairs of\nthe senate finance committee and the assembly ways and means committee\nof any plans to transfer all or a portion of the portfolio of claims\ndetermined to be eligible for reimbursement from the special disability\nfund or to enter into an assumption of workers' compensation liability\ninsurance policy, not less than forty-five days prior to the\ncommencement of such process. At any time borrowing is anticipated to\nsettle claims, the chief executive officer of the dormitory authority of\nthe state of New York and the director of the budget shall provide a\nreport to the chairs of the senate finance committee and the assembly\nways and means committee on a planned bond sale of the authority and\nsuch report shall include, but not be limited to: (A) the maximum amount\nof bonds expected to be sold by the authority in connection with a sale\nagreement; (B) the expected maximum interest rate and maturity date of\nsuch bonds; (C) the expected amount of the bonds that will be fixed\nand/or variable interest rate; (D) the estimated costs of issuance; (E)\nthe estimated level or levels of reserve fund or funds, if any; (F) the\nestimated cost of bond issuance, if any; (G) the anticipated use or uses\nof the proceeds; (H) the maximum expected net proceeds that will be paid\nto the state as a result of the issuance of such bonds; and (I) the\nprocess to be used to select parties to the transaction. Any such\nexpectations and estimates in the report shall not be deemed a\nsubstantive limitation on the authority of the dormitory authority of\nthe state of New York.\n