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CLAIMANT PRECLUDED FROM FURTHER WORKERS’ COMPENSATION BENEFITS FOR FAILURE TO SEEK PERMISSION BEFORE SETTLING A RELATED TORT ACTION, MEANING OF THIRD PARTY ACTION IN THIS CONTEXT EXPLAINED.

The Third Department determined claimant did not seek permission from her Workers’ Compensation carrier before settling another action which arose from the some of the same allegations as her Workers’ Compensation claim. Therefore she was precluded from receiving future Workers’ Compensation benefits. Claimant unsuccessfully argued that the federal court action which settled was not a “third party” action within the meaning of the Workers’ Compensation Law because the action was against claimant’s co-worker and employer, not a “third party:”

“Workers’ Compensation Law § 29 (5) requires either the carrier’s consent or a compromise order from the court in which the third-party action is pending for a claimant to settle a third-party action and continue receiving compensation benefits” … . Claimant urges that her federal lawsuit was not a third-party action since the statute addresses “the negligence or wrong of another not in the same employ” (Workers’ Compensation Law § 29 [1]) and the associate dean who harassed her had the same employer as her. The Court of Appeals, however, has recently reiterated that Workers’ Compensation Law § 29, “‘read in its entirety and in context, clearly reveals a legislative design to provide for reimbursement of the compensation carrier whenever a recovery is obtained in tort for the same injury that was a predicate for the payment of compensation benefits'” … . “The Court reasoned that “‘[i]t would be unreasonable to read the statute as mandating a different result merely because the recovery came out of the pockets of a coemployee [or the employer] and not from the resources of a stranger'” … . Matter of Shiner v SUNY At Buffalo, 2016 NY Slip Op 07738, 3rd Dept 11-17-16

WORKERS’ COMPENSATION LAW (CLAIMANT PRECLUDED FROM FURTHER WORKERS’ COMPENSATION BENEFITS FOR FAILURE TO SEEK PERMISSION BEFORE SETTLING A RELATED TORT ACTION, MEANING OF THIRD PARTY ACTION IN THIS CONTEXT EXPLAINED)

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