The Third Department determined the denial of Workers’ Compensation benefits was proper because claimant did not obtain the Workers’ Compensation carriers consent before settling a third-party action arising from the traffic accident:
“Workers’ Compensation Law § 29 (5) requires either the carrier’s consent or a compromise order from the court in which a third-party action is pending for a claimant to settle a third-party action and continue receiving compensation benefits” … . The burden is on the claimant to establish that proper consent was obtained … . “The question of whether a settlement was procured with the proper consent of the carrier is a factual issue for the Board to determine” … . It is “well settled that neither [this Court] nor the Court of Appeals has power to upset the determination of an administrative tribunal on a question of fact . . . beyond seeing to it that there is substantial evidence” … .
In support of claimant’s contention that consent for the settlement was properly obtained, he relies on the final sentence in two correspondences sent by the carrier to his third-party counsel stating that the carrier “has no objection to a $50,000 policy limit settlement of the claimant’s bodily injury claim.” Both correspondences, however, also specifically advised that the carrier’s “consent is required prior to settlement or discontinuance of any third-party action” and to “please communicate with [the carrier]” before settlement to arrange for consent and satisfaction of the lien. A review of the entire correspondences and the plain language therein reflects that the carrier anticipated further communication with the third-party counsel prior to consenting to any settlement. Matter of Hisert v Ron Allen Trucking Inc., 2019 NY Slip Op 05735, Third Dept 7-18-19