1. The Laws of New York
  2. Consolidated Laws
  3. Workers' Compensation
  4. Article 2: Compensation


Section 32 Waiver agreements

Workers' Compensation (WKC)

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.