Self-Insured Employer Not Entitled to Offset Workers’ Compensation Benefits by the Amount Claimant Received in a Third-Party Settlement

The Third Department determined claimant's self-insured employer was not entitled to a reduction of the Workers' Compensation benefits payable to claimant by offsetting the amount claimant received in a third-party settlement (claimant was injured in an automobile accident on the job–employer agreed to the settlement):

Workers' Compensation Law § 29 provides that a carrier or self-insured employer that pays workers' compensation benefits has the right to offset future payments of compensation against proceeds recovered by a claimant in a third-party action as long as such payments do not constitute first party benefits made to reimburse a claimant for basic economic loss or payments made in lieu of first party benefits under the No-Fault Law (see Workers' Compensation Law § 29 [1], [1-a], [4]; Insurance Law §§ 5102 [a], [b]; 5104 [a]…). Basic economic loss includes payments, not exceeding $50,000, for items such as lost earnings of up to $2,000 per month for three years after the date of the accident (see Insurance Law § 5102 [a] [2]…). Payments that are considered reimbursement for basic economic loss or that are made in lieu thereof are not subject to the offset provisions of Workers' Compensation Law § 29 … . The dispositive question presented on this appeal is whether that part of the schedule loss of use award associated with claimant's [initial] lost time falls within this category, despite the fact that it was initially labeled as payment for “temporary total disability.” * * *

Inasmuch as claimant received only a schedule loss of use award, the award is not allocable to any particular time period, and the fact that the monthly rate of the award exceeded the $2,000 threshold in Insurance Law § 5102 (a) (2) is irrelevant to the employer's right of offset … . Matter of Cruz v City of New York Dept of Children's Services, 2014 NY Slip OP 09074, 3rd Dept 12-31-14