September 1, 2006
The Workers’ Compensation Board is committed to continuously analyzing its practices and procedures and to improving the service it provides to the workers and employers of New York. The Board is pleased to announce several changes to the way it processes Workers’ Compensation Law Section 32 waiver agreements. These changes will reduce the time it takes for the Board to approve Section 32 agreements while better safeguarding the welfare of injured workers.
Section 32 of the Workers’ Compensation Law (§32) was amended in 1996 to permit the parties to enter into an agreement settling any or all issues in a claim for workers’ compensation benefits, subject to the approval of the Workers’ Compensation Board (WCB). In the ten years since, the number of §32 agreements submitted to the WCB has increased steadily.
Board Rule 12 NYCRR §300.36(d) provides that a §32 agreement can be reviewed and approved by the Chair of the Board or his or her designee, a Board Commissioner or a Workers’ Compensation Law Judge (WCLJ). At present, all §32 agreements are reviewed and approved or disapproved by one of a maximum of 12 Board Commissioners. Initially, in every case in which a §32 agreement was submitted, the parties were required to attend a hearing where they could be questioned by a Board Commissioner about the agreement. However, based on the volume of §32 agreements received by the WCB, in September of 2000, the Board Commissioners began reviewing many agreements administratively, without a hearing.
This process, where some agreements are reviewed at a hearing [for example, those involving unrepresented claimants], while others are reviewed administratively, has worked. The Commissioners have done a tremendous job during the past ten years conscientiously reviewing all waiver agreements submitted to the Board for approval. However, now with the benefit of ten years experience reviewing §32 agreements and after careful consideration, the WCB has determined that it is in the best interest of all parties that a hearing be held in every case to consider whether a proposed §32 agreement should be approved. Due to the limited number of Commissioners and the volume of §32 agreements, for the WCB to hold a timely hearing in every case in which a waiver agreement is filed, it will be necessary for WCLJs to review and approve those agreements.
The WCB employs over 80 WCLJs statewide. With the number of WCLJs available to review agreements, a hearing can be held for each agreement where the WCLJ will have the opportunity to question the parties about the agreement and make findings when necessary. In most cases, the WCLJ reviewing the §32 agreement will have conducted prior hearings in the matter and will be familiar with the facts and circumstances of the claim. As WCLJ hearings are held in all WCB district offices and customer service centers, claimants will no longer have to travel to a District Office for the hearing. It is also anticipated that the time between submission of an agreement to the WCB and when it is approved or disapproved will be significantly decreased. By shortening the time it takes for a §32 agreement to be approved by the WCB, the claim will be finally resolved expeditiously which benefits everyone and ensures claimants receive their settlement quickly.
The Board receives over 10,000 applications for review from WCLJ decisions annually, which require a decision by a panel of three Commissioners. Over the past 11 years, the time it takes for a decision to be issued has consistently been reduced. In their role as appellate adjudicators, the Board’s Commissioners are entrusted with maintaining the quality and consistency of Board decisions, while always mindful of the importance of rendering appellate determinations as soon as possible. With the Board Commissioners able to again focus their efforts on these responsibilities, the Board’s appellate process can only be further improved, resulting in necessary benefits being paid to injured workers more quickly and claims being resolved more expeditiously.
The Board is also pleased to announce that it has entered into a data sharing agreement with the Division of Child Support Enforcement of the New York State Office of Temporary and Disability Assistance (“OTDA”), aimed at improving the collection of child support obligations from non-custodial parents. It has long been the policy of the Board that when a claimant owes a past-due child support obligation, the Board will not approve a Section 32 agreement involving that claimant unless the agreement provides that the support obligation will be paid in full out of the settlement proceeds.
The Board will begin receiving a certified data file each month from OTDA, which will contain information on persons that owe past-due child support payable through a local district Support Collection Unit (SCU). Board examiners will check this data upon receiving a Section 32 agreement to determine if a claimant owes past-due child support. If past-due child support is owed, but is not addressed in the Section 32 agreement or the correct amount is not referenced, the examiner will notify the claimant that the Section 32 agreement will not be approved until the issue of the past-due child support is resolved. If a claimant disagrees with the information received from OTDA, he/she will need to contact the local district SCU to obtain a written statement with the correct information. If questions regarding child support arise, parties can contact the Division of Child Support Enforcement helpline at 1-888-208-4485.
Changes have been made to Form C-32 (Settlement Agreement – Section 32 WCL) and form C-32.1 Form C-32.1 (Section 32 Settlement Agreement: Claimant Release – formerly EC-32.1). Copies of the revised forms are available on the Board’s website, under the heading Common Forms. Form C-32 now includes two checkboxes which require the parties to indicate whether the agreement resolves all issues relative the claim(s) involved, or settles some issues and leaves others open. Instructions for the submission of §32 agreements have also been added to the reverse of Form C-32. Form C-32.1 now contains a statement that claimant affirms, under penalty of perjury, that the information provided on the form is true and accurate. Previously, the Board required that Form C-32.1 be submitted only in those cases in which the agreement was approved without a hearing. However, the Board now requires that Form C-32.1 be submitted along with every §32 agreement, even though a hearing will now be held to consider all agreements. This will allow the Board to identify those cases with issues of particular concern prior to the hearing. Keep in mind that all §32 agreements must be accompanied by Forms C-32 and C-32.1, or include the information required by those forms (12 NYCRR §300.36(b)). Please use the up-to-date forms, which are available on the Board’s website, or if you have developed your own versions of the forms, be sure to modify them in accordance with official Board forms.
The procedural and technical changes required by this change are underway. It is anticipated that these changes will go into effect no later than October 1, 2006.