Date: April 4, 2005
On September 3, 2003, the Board issued Subject Number 046-119, which discussed a number of recurring issues relative to the Board's review of WCL § 32 waiver agreements. The purpose of this announcement is to supplement and clarify Subject Number 046-119 and provide an update on the submission and processing of WCL § 32 agreements.
Also, in response to numerous requests from parties regularly appearing before the Board, the end of this announcement contains sample terms and conditions which are similar to terms and conditions contained in WCL § 32 agreements previously approved by the Board. These sample terms and conditions are intended solely as a reference. Parties are not required to use any of the sample terms in agreements submitted to the Board for review, nor is it suggested that those terms will necessarily protect all of the rights and interests of the parties to a § 32 waiver agreement. The parties to a waiver agreement and their counsel are solely responsible for ensuring that terms and conditions necessary to protect their interests are included in the agreement.
Recently the Appellate Division, Third Department issued its decision in Matter of Hart v. Pageprint/Dekalb, 6 A.D.3d 947, 775 N.Y.S.2d 195. This appeal centered on whether the imposition of a penalty against the carrier for the late payment of monies pursuant to the terms of a waiver agreement approved by the Board was appropriate. The Court reversed the Board's affirmance of the imposition of the penalty saying the Board had not followed its regulations, 12 NYCRR 300.36.
On April 29, 2004, the Board filed an emergency regulation with the Department of State, effective immediately, to amend 300.36. The emergency regulation has subsequently been readopted and remains in effect. Specifically, the regulation was amended to provide that a waiver agreement pursuant to Workers' Compensation Law §32 may be reviewed administratively, based upon the record before the Board, or a meeting may be scheduled. If the agreement is reviewed administratively, the Board will advise the parties in writing of the date the agreement is deemed submitted for purposes of WCL §32. If a meeting is scheduled, the agreement will be deemed submitted at the time of the meeting. The full text of the emergency regulation is available at the Boards web site (www.wcb.ny.gov).
After reviewing the Hart decision, and the facts of that case, the Board will not revisit waiver agreements which were approved administratively, without a meeting, prior to April 29, 2004.
In order to ensure the timely processing and review of § 32 waiver agreements and to avoid confusion and delay, the Board requires that parties adhere to the following administrative requirements. Agreements received more than 45 days after the date of this announcement which do not comply with these administrative requirements will not be processed by the Board and will be returned to the parties for amendment.
Signature and Date
All § 32 waiver agreements must be signed and dated by all parties on the last page of the agreement. All pages of a § 32 agreement must be numbered and indicate the total number of pages in the agreement (Example: page 1 of 3).
When the Board requests that an agreement be modified, the parties must submit a revised agreement reflecting the change, rather than an addendum. It can either be an entirely new agreement with a new signature page executed by all parties, or a copy of the original agreement with the changes made in the text of the agreement and the changes initialed and dated by all parties. This applies to amendments made at a meeting and to amendments made after administrative review by the Board.
The sole exception is that when there is a pending Form C-250 in the file and the agreement is silent on the issue of WCL 15(8), the carrier may indicate by a letter to the Board that it is withdrawing its 15(8) claim and the parties need not amend the agreement.
EC-32.1 (Claimant Release Form)
When the Board requests that a claimant submit a signed and notarized Form EC-32.1 (Claimant Release Form), only the official Board promulgated form, which is available at the Board's web site, should be used.
When a § 32 agreement is submitted in a case in which an appeal from a WCLJ's decision is pending, the agreement must indicate whether or not the appeal will be withdrawn upon final approval of the agreement and, if so, whether awards stayed during the pendency of the appeal will be payable to the claimant in addition to the monies payable pursuant to the agreement, or are included in that sum. Agreements received more than 45 days after the date of this announcement which do not comply with this requirement will not be processed by the Board and will be returned to the parties for amendment.
When a § 32 agreement is submitted in a claim in which continuing payments have been directed by a decision of the Board, the agreement must indicate the date (i.e., final approval, date of meeting) on which continuing payments will cease. Agreements received more than 45 days after the date of this announcement which do not comply with this requirement will not be processed by the Board and will be returned to the parties for amendment.
When a § 32 agreement is filed in a claim in which a direction has been made for an attorney fee to be deducted out of ongoing payments, and some portion of the fee is still outstanding, the Form OC-400.1 (Application for a Fee by Claimant's Attorney or Representative) requesting a fee from the proceeds of the section 32 agreement and the agreement itself should address those unpaid fees. For example, the attorney can indicate that if the agreement and the fee now requested are approved, the attorney will waive all previously awarded fees which remain unpaid. Agreements received more than 45 days after the date of this announcement which do not comply with this requirement will not be processed by the Board and will be returned to the parties for amendment.
Subject Number 046-119, issued September 3, 2003, advised that when a §32 agreement was submitted with regard to a claim for death benefits, a meeting would always be scheduled to discuss the agreement with the parties. The Board has subsequently determined that in most circumstances a meeting is not necessary with regard to the settlement of a claim for death benefits. Of course, the Board may determine that issues are present which warrant a meeting with the parties, but a meeting will not automatically be scheduled solely because an agreement involves a claim for death benefits.
David P. Wehner
The following numbered items should be addressed, if applicable, in the Section 32 agreement. Following each example is language that has been routinely seen and approved by the Board. This sample agreement is intended solely as a reference. Parties are not required to use any of the terms of this sample agreement in agreements submitted to the Board for review, nor is it suggested that those terms will necessarily protect all of the rights and interests of the parties to a §32 waiver agreement. The parties to a waiver agreement and their counsel are solely responsible for ensuring that terms and conditions necessary to protect their interests are included in the agreement.
This agreement is prepared and submitted pursuant to §32 of the Workers' Compensation Law. By signing below, each party to the agreement affirms that (s)he has read an understands its provisions, and understands that the agreement, if approved by the Workers' Compensation Board, is conclusive, final and binding on the parties involved.
The claimant and the carrier hereby agree: