2010 New York Code
WKC - Workers' Compensation
Article 2 - (9 - 35) 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,  the  state  insurance
  fund,  or  the  special  funds  conservation committee 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  any
  third  party  to  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 third party shall agree to be subject to
  any guidelines or directives as the chair may issue.
    (2)  The  chair, with approval of the special disability fund advisory
  committee and on such terms as the committee  deems  appropriate,  shall
  have  discretion  to  procure one or more private entities to assume the
  liability for and management, administration or settlement of all  or  a
  portion  of  the  claims  in  the  special  disability  fund.  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  such  contract  shall  expressly  provide  that  the special
  disability fund is no longer  liable  for  the  claims  covered  by  the
  contract,  and  require security of either cash, an indemnity policy, or
  such security as is otherwise sufficient to cover any losses incurred as
  a result of the failure or default of the entity or entities awarded any
  such contract, including as a result  of  the  insolvency  of  any  such
  entity. The chair may waive all or part of such security, and may impose
  other  reasonable  methods  of  insuring  payment,  upon approval of the
  special disability fund advisory committee.
    (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  insurance 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 contract with any party to take responsibility in whole or in
  part for the  administration  of  a  material  portion  of  the  claims,
  including  the procurement process to be used to select parties involved
  in such transfer or contract, 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.