WCB Announces Changes to the Section 32 Waiver Agreement Resolution Process
As of March 1, 2016, the Workers’ Compensation Board will use a desk review process to review and approve or disapprove Section 32 settlement agreements in certain circumstances. A Section 32 agreement is a negotiated agreement between the injured worker and the carrier to settle indemnity (money) and/or medical benefits on a claim. The Section 32 settlement is not binding unless it is approved by the Workers' 50Compensation Board. Prior to March 1, 2016, all Section 32 settlements required review and approval by a Law Judge at a hearing.
The change in the Section 32 settlement process allows for a desk review in cases where the claimant (other than a minor dependent) is waiving only their right to indemnity benefits, or when all parties to the agreement request desk review. The Board believes the use of the desk review process will reduce the time it takes to approve a Section 32 agreement and allow calendar time to be prioritized for cases with pressing issues. The Board will continue to review other Section 32 settlement agreements through the hearing process.
The Board created new and revised forms that must be used for all Section 32 settlement agreements as of March 1, 2016. In addition, the Board developed a video, entitled Settling Your Claim, to help educate injured workers about the nature of a Section 32 settlement agreement and the implications of settling their claim. The Board now requires that injured workers watch this video before they enter into a Section 32 settlement. Attorneys must inform their clients about the video as part of their review of the Section 32 settlement agreement.
The Board believes that the updated desk review process will benefit all parties and expedite the timeframe for approval. However, we believe there are several concerns with the new process. We meet with every client and go line by line through a Section 32 settlement agreement and answer all questions before signing and submitting the agreement to the Board. Not all attorneys follow this practice. A hearing in front of a Law Judge provides an injured worker with an opportunity to ask either their attorney or the Law Judge any final questions. The new desk review process denies an injured worker of this opportunity.
The desk review process also eliminates the opportunity for the parties to make any minor changes to the agreement requested by either party or the Board at the table. For example, a child support order may need to be corrected or updated to reflect the accurate amounts to be paid. In the desk review process, the written agreement will be rejected by the Board with a request that the agreement be revised and resubmitted for consideration, which will take more time. It remains to be seen whether the desk review process will actually result in faster time frames for decisions or simply delay the approval and payment of settlements.
WCB announces elimination of Walk in Stipulation Calendars
Unfortunately, the New York State Workers’ Compensation Board has announced that they are abandoning one of the most successful procedural devices adopted by the Board: Walk in Stipulation Calendars or W.I.S.K. Hearings.
A W.I.S.K. hearing was a walk in stipulation calendar (or kalendar) where the parties could prepare a written stipulation on specific issues and schedule a hearing almost immediately for approval of the stipulation by a law Judge on behalf of the Board. The Board would then issue a written Notice of Decision within three to five days and stipulations could not be appealed lending certainty and finality to the process.
The program was favored by litigants because issues could be resolved with almost immediate results instead of waiting for a month or more for the Board to schedule a hearing.
The program became so popular that the W.I.S.K. calendars were sometimes full and the parties had to wait an additional week to schedule a hearing, but still faster than waiting for the Board to schedule a hearing and take action. This was especially helpful when an injured worker was not getting paid or was being paid at a low rate and the parties agreed to an increased rate. It was also helpful when the parties were able to agree on issues such as permanency. The benefit was that the awards agreed to in the stipulation were payable as early as three weeks.
Now, the Board has advised that there will be no more W.I.S.K. hearings. In place of the W.I.S.K. hearings, the Board is offering to have the parties prepare a written stipulation and mail it to the Board for a desk review and approval. The Board has not revealed who will be reviewing the proposed stipulations (Judges or examiners), nor have they outlined a time line for approval other than a local official commenting that they expected (hope) to issue Notices of Decision within three weeks. The Board says this will save time and reduce hearings.
Our position is that the W.I.S.K. system was expeditious and effective with results within a week to two weeks. The Board’s change does not inspire confidence that results will be as quick. Past performance would suggest further delays. For example, the Board’s new phone service center no longer gets you to an examiner on your case instead you are told that someone will call or write you within the next ten business days.
In our opinion, the Board has eliminated one of the few things that attorneys on both sides of the table would agree was working well.