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SPECIAL DISABILITY FUND CAN BE COMPELLED BY COURT ORDER TO CONSENT, NUNC PRO TUNC, TO A THIRD-PARTY SETTLEMENT.

The Court of Appeals, reversing Supreme Court, determined the Workers’ Compensation carrier could seek a court order compelling the Special Disability Fund to consent to a settlement with a third-party.  Here the carrier agreed to the settlement and the carrier then sought retroactive consent from the Special Disability Fund, which refused:

Here, as required by section 29, the injured employee sought and obtained Ace Fire’s approval prior to entering the settlement of the third-party action. Ace Fire, however, did not seek the Special Disability Fund’s written approval prior to settlement. When Ace Fire sought the Special Disability Fund’s retroactive consent, the Fund refused, asserting that Ace Fire had forfeited its right to reimbursement. Ace Fire then commenced this proceeding asking Supreme Court to compel the Special Disability Fund’s consent nunc pro tunc under Workers’ Compensation Law § 29 (5).

We have repeatedly recognized “that a statute . . . must be construed as a whole and that its various sections must be considered together and with reference to each other” … . The language in section 29 (1) establishing what entities may be deemed lienors is essentially identical to the language in section 29 (5) referring to the entities whose consent to settlement is required and, if not obtained, can be compelled upon application to the court — i.e., the “person, association, corporation, or insurance carrier liable to pay” compensation benefits. Here, the parties do not dispute that the consent of the Special Disability Fund to settlement of the employee’s third party action was required. Thus, assuming, for purposes of this appeal, that the Special Disability Fund is a lienor whose consent to settlement is required under Workers’ Compensation Law § 29 (1), we conclude that the carrier may seek to obtain the Fund’s consent from Supreme Court nunc pro tunc under section 29 (5). There is no principled basis for concluding that the Special Disability Fund’s consent is required as a lienor under one portion of the statute, but that the failure to obtain it cannot be cured, as it can for other lienors, under the same statute. Ace Fire Underwriters Ins. Co. v Special Funds Conservation Comm., 2016 NY Slip Op 07833, CtApp 11-22-16

 

WORKERS’ COMPENSATION LAW (SPECIAL DISABILITY FUND CAN BE COMPELLED BY COURT ORDER TO CONSENT, NUNC PRO TUNC, TO A THIRD-PARTY SETTLEMENT)/SPECIAL DISABILITY FUND (WORKERS’ COMPENSATION LAW, SPECIAL DISABILITY FUND CAN BE COMPELLED BY COURT ORDER TO CONSENT, NUNC PRO TUNC, TO A THIRD-PARTY SETTLEMENT)

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