You are here: / Workers' Compensation

Late Motion for Judicial Approval of a Settlement Properly Denied—Delay In Seeking Approval Was Due to Plaintiff’s Own Fault or Neglect

The Second Department determined plaintiff's late motion for judicial approval of a settlement was properly denied because the delay in making the motion was due to the plaintiff's own fault or neglect:

“Pursuant to Workers' Compensation Law § 29(5), an employee who is the recipient of workers' compensation benefits may compromise a third-party claim arising out of the same accident without prejudice to the continued payment of benefits upon obtaining either the written consent of the compensation carrier before the compromise, or judicial approval of the compromise within three months after it” … . “However, a judicial order may be obtained nunc pro tunc approving a previously agreed-upon settlement, even where the application for approval is sought more than three months after the date of settlement, provided that the employee can establish that (1) the amount of the settlement is reasonable, (2) the delay in applying for a judicial order of approval was not caused by the employee's fault or neglect, and (3) the insurance carrier was not prejudiced by the delay” … .

A proceeding for approval, nunc pro tunc, of the settlement of a third-party action pursuant to Workers' Compensation Law § 29(5) is directed to the discretion of the court … . Here, the delay in seeking judicial approval was due to the plaintiff's own fault or neglect. Under these circumstances, the Supreme Court providently exercised its discretion in denying the plaintiff's motion … . Lobban v Brown, 2015 NY Slip Op 00850, 2nd Dept 2-4-15


Judicial Approval of a Settlement with Third Parties Was Properly Granted After the Expiration of the Statutory Period (Nunc Pro Tunc)—Delay In Seeking Approval Was Not Due to Injured Worker’s Fault or Neglect/Workers’ Compensation Carrier’s Consent to a Settlement Is Required Even Where the Settlement Is Greater than the Amount of the Benefits Received/Absent the Consent of the Carrier, Judicial Approval Is Required

The Second Department determined judicial approval of a settlement with third parties after the statutory period had passed was properly granted nunc pro tunc.  The injured worker received about $189,000 in workers' compensation benefits and eventually settled with third parties for $2,000,000. The workers' compensation carrier sued to collect on its lien.  The court noted that, despite the language of Workers' Compensation Law 29(5), the workers' compensation carrier's consent to a settlement is required even if the amount of the settlement is more than the amount of the benefits. In the absence of such consent (absent here), judicial approval is required (properly granted here):

Workers Compensation Law § 29(5) provides, in pertinent part:

“A compromise of any such cause of action by the employee or his dependents at an amount less than the compensation provided for by this chapter shall be made only with the written approval of . . . the person, association, corporation, or insurance carrier liable to pay the same. However, written approval . . . need not be obtained if the employee or his dependents obtain a compromise order from a justice of the court in which the third-party action was pending. …

.

“If the third-party action is on trial at the time the offer of settlement which is acceptable to the plaintiff, is made and either such written approval or order as provided in this subdivision is required, the action may be marked settled subject to the securing of such written approval or such order. If such written approval or such order is not subsequently secured within three months the action shall be restored to the head of the trial day calendar” (emphasis added).

Section 29(5) was enacted to protect an insurance carrier from paying a deficiency between the settlement and the amount paid to the injured party … . As originally enacted, the provision required the consent of the insurance carrier. However, “in many instances, the carrier arbitrarily refused to give its consent to a proposed settlement regardless of how fair or generous the proposal might have been,” prompting the Legislature to amend the provision to provide that consent need not be obtained where there is judicial approval of the settlement … .

Although there is case law which indicates that approval pursuant to Workers' Compensation Law § 29(5) is not required if the amount of Workers' Compensation benefits received is less than the amount of the settlement …, the Court of Appeals has held that even where the settlement constitutes 100% of the policy limits, approval pursuant to Workers' Compensation Law § 29(5) is required in order for the claimant to continue to receive Workers' Compensation benefits in the future …. Any settlement is potentially less than the benefits provided by the Workers' Compensation Law (see 1-7 New York Workers' Compensation Handbook § 7.01[5] [2014]), especially where, as here, the claimant is seeking a permanent partial disability classification from the Workers' Compensation Board, which could mean that he would be entitled to benefits indefinitely.

“[A] judicial order may be obtained nunc pro tunc approving a previously agreed-upon settlement, even where the application for approval is sought more than three months after the date of settlement, provided that the employee can establish that (1) the amount of the settlement is reasonable, (2) the delay in applying for a judicial order of approval was not caused by the employee's fault or neglect, and (3) the insurance carrier was not prejudiced by the delay” … . Fidelity & Guar Ins Co v Digiacomo, 2015 NY Slip OP 00842, 2nd Dept 2-2-15


Employer’s Claim for Reimbursement from the Special Disability Fund for Death Benefits Paid Re: an Employee Who Died from Dust Disease Time-Barred—Even Though the Injury to the Employee Predated the Last Date for Such Claims, the Death Occurred After the Statutory Cut-Off Date

The Third Department determined the employer’s claim for reimbursement for death benefits paid on behalf of an employee who died from dust disease was time-barred.  Pursuant to Workers’ Compensation Law 15, new claims for reimbursement from the Special Disability Fund can not be made after July 1, 2010.  Even though the injury to the employee predated 2010, his death in 2011 required the filing of a “new” claim re: the death benefits (which cannot accrue until death):

Where, as here, an employee is disabled due to a dust disease, Workers’ Compensation Law § 15 (8) (ee) provides that an “employer . . . or carrier shall . . . be reimbursed from the special disability fund . . . for all compensation and medical benefits subsequent to those payable for the first . . . [260] weeks of disability for claims where the date of accident or date of disablement occurred on or after August [1, 1994].” Likewise, if an employee has died due to a dust disease, the statute provides that an “employer or . . . carrier shall be reimbursed from the special disability fund . . . for all death benefits payable in excess of . . . [260] weeks for claims where the date of accident or date of disablement occurred on or after August [1, 1994]” (Workers’ Compensation Law § 15 [8] [ee]). Such reimbursement is expressly subject to the limitations contained in Workers’ Compensation Law § 15 (8) (h) (2) (A), which “bars claims based upon dates of disablement or accident after July 1, 2007” … . That subdivision further expressly provides, as here dispositive, that “[n]o carrier or employer . . . may file a claim for reimbursement from the special disability fund after July [1, 2010] and no written submission or evidence in support of such a claim may be submitted after that date”… . Given the “clear and unambiguous” terms of the reimbursement limitations provision of section 15 (8) (h) (2) (A), this Court has given effect to the plain meaning of the language employed … by recognizing that the provision bars “all new claims after July 1, 2010” … .

We reject the employer’s argument that its claimed entitlement to reimbursement from the Special Disability Fund is not a “new” claim, on the premise that it relates back to the original disablement in 1999 thereby establishing its right to reimbursement for a death occurring after July 1, 2010. In this regard, a claim for reimbursement for death benefits is “separate and distinct” from the original claim for reimbursement for disability benefits … . That is, “[t]he right to death benefits does not accrue prior to death” and death, while not a new injury or accident, results in a “new claim” for purposes of death benefits reimbursement… . Matter of Connolly v Consolidated Edison, 2015 NY Slip Op 00673, 3rd Dept 1-29-14

 

,

Penalty of Reasonable Attorney’s Fees Properly Assessed Against Claimant’s Attorney for Making Baseless Requests for a Change of Venue

The Third Department determined that the penalty of reasonable attorney’s fees was appropriate where claimant’s counsel made several baseless requests for a change of venue:

We have repeatedly upheld the imposition of a penalty of reasonable counsel fees pursuant to Workers’ Compensation Law § 114—a (3) (ii) when, as here, the record contains substantial evidence that a venue request was made without a reasonable basis … . The record reflects that there was no legitimate basis for seeking the venue change and the Board had previously rejected several similarly-worded venue change requests by counsel. Under these circumstances, the Board did not exceed its authority in assessing a penalty against counsel based upon the filings of the request to change venue and the appeal to the Board without reasonable grounds (see Workers’ Compensation Law § 114-a [3] [ii]; see also Workers’ Compensation Law §§ 23, 142), and its decision will not be disturbed … . Matter of Estwick v Risk Mgt Planning, 2015 NY Slip Op 00686, 3rd Dept 1-29-15

 

Responsibility for Payments for a 1999 Claim (Which Was Reopened After 13 Years) Shifted from the Workers’ Compensation Carrier to the Special Fund—Rationale for the Special Fund Explained—Payments Made by Carrier Re: a 2005 Claim Were Not Partially Attributable to the 1999 Claim—Therefore the Carrier Was No Longer Responsible for Payments Re: the 1999 Claim

The Third Department determined payments made by the employer re: a 2005 claim were not partially attributable to a 1999 claim. Therefore, any “new” payments re: the 1999 claim were the responsibility of the Special Fund, not the Workers’ Compensation carrier:

Workers’ Compensation Law § 25-a (1) provides, in relevant part, that “when an application for compensation is made by an employee . . . after a lapse of seven years from the date of the injury . . . and also a lapse of three years from the date of the last payment of compensation, . . . if an award is made it shall be against the special fund” … . “The purpose of [the statute] is to save employers and insurance carriers from liability . . . for stale claims of injured employees” … . Here, the 1999 claim was reopened in 2012, approximately 13 years after the December 3, 1999 injury and 12 years after the September 27, 2000 closing of the case. The Special Fund, however, asserts that the carrier continued to make payments on the 2005 claim that it knew were partially attributable to injuries sustained by claimant in connection with the 1999 claim and that, consequently, three years did not pass from the date of the last payment of compensation, thereby precluding liability from shifting under Workers’ Compensation Law § 25-a. We note that “[p]ayments that are made voluntarily, and in recognition of the employer’s liability, are considered advance compensation and will prevent the transfer of liability to the Special Fund” … . Significantly, “whether an advance payment of compensation has been made is a factual question for the Board to resolve, and its determination in this regard, if supported by substantial evidence in the record as a whole, will not be disturbed” … .

Upon reviewing the record, substantial evidence supports the Board’s finding that the carrier did not make an advance payment of compensation. There is no indication that the carrier knowingly made payments on the 2005 claim that were partially to compensate claimant for injuries sustained in connection with the 1999 claim. Matter of Wetterau v Canada Dry, 2015 NY Slip Op 00672, 3rd Dept 1-29-15

 

Claimant’s PTSD Linked to 6-Day Stint at the Site of the Collapse of the World Trade Center

The Third Department affirmed the Worker’s Compensation Board’s findings that claimant’s post-traumatic stress disorder (PTSD), for which claimant first sought treatment in 2010, was related to his 6-day stint at the site of the collapse of the World Trade Center in 2001.  The court explained the broad applicability of the relevant statutes (Workers’ Compensation Law article 8-A) and the criteria for a full Board review (newly discovered evidence or a material change in condition):

At the World Trade Center site, claimant engaged in “perimeter containment” and “transports.” He testified that he “help[ed] control who came and left the . . . site,” escorted people to the site and brought them materials, equipment and personnel. Based on this evidence, the Board reasoned that claimant’s activity constituted participation in World Trade Center rescue, recovery or cleanup operations pursuant to Workers’ Compensation Law article 8-A. Generally, the Board requires that the “claimant directly participate in or otherwise have some tangible connection to the rescue, recovery or cleanup operations”…; its reasoning here is consistent with prior Board decisions addressing this issue … . Claimant’s uncontroverted testimony indicated that he supplied direct support and assistance to first responders engaged in rescue and recovery efforts at ground zero; thus, the Board’s determination that Workers’ Compensation Law article 8-A applies is supported by substantial evidence and will not be disturbed … . Matter of Regan v City of Hornell Police Dept, 2015 NY Slip Op 00407, 3rd Dept 1-15-15

 

“Total Industrial Disability” Finding Affirmed—Partially Disabled Claimant Was Deemed Unable to Find Work Based Upon His Age, Education and Work History

The Third Department determined claimant, who had a marked permanent partial disability, was properly found to “totally industrially disabled” because his disability, coupled with his age, limited education and other factors, made it impossible for claimant to find work:

“A claimant who has a permanent partial disability may nonetheless be classified as totally industrially disabled where the limitations imposed by the work-related disability, coupled with other factors, such as limited educational background and work history, render the claimant incapable of gainful employment” … . Whether a claimant suffers from a total industrial disability is “a question of fact for the Board to resolve and its determination will not be disturbed if supported by substantial evidence” … . Matter of Rose v Roundpoint Constr, 2015 NY Slip Op 00421, 3rd Dept 1-15-15

 

, ,

Strict Products Liability Cause of Action Against Forklift Manufacturer Properly Dismissed Due to Owner’s Disabling Safety Switch/Question of Fact Whether Plaintiff Was a Special Employee of the Owner of the Forklift (Which Would Limit Plaintiff’s Recovery to Workers’ Compensation)

Plaintiff was injured by a forklift which continued running when he was out of the driver’s seat because the safety switch (which would have automatically shut the forklift off when the driver left the seat) had been disabled by the owner of the forklift.  The Fourth Department determined the strict products liablity cause of action against the manufacturer of the forklift was properly dismissed because the safety switch had been disabled. But the negligence cause of action against the owner of the forklift, Nuttall Gear, should not have been dismissed.  Nuttal Gear argued plaintiff was its special employee and therefore Workers’ Compensation was the exclusive remedy.  The Fourth Department determined there was a question of fact about whether plaintiff was a special employee. It was not clear that Nuttal Gear supervised plaintiff’s work:

We conclude that the court properly granted the motions of the products liability defendants. As the Court of Appeals has recently made clear, ” a manufacturer, who has designed and produced a safe product, will not be liable for injuries resulting from substantial alterations or modifications of the product by a third party which render the product defective or otherwise unsafe’ ” … . Here, the products liability defendants established as a matter of law that the forklift was not defectively designed by establishing that, when it was manufactured and delivered to Nuttall Gear, it had a safety switch that would have prevented plaintiff’s accident, and a third party thereafter made a substantial modification to the forklift by disabling the safety switch. The burden thus shifted to plaintiffs to raise an issue of fact, and they failed to meet that burden … . Contrary to plaintiffs’ contention, the affidavit of their expert, a professional engineer, does not raise a triable issue of fact.

We agree with plaintiffs, however, that the court erred in granting the motion of the Nuttall Gear defendants for summary judgment dismissing the complaint against them, and we therefore modify the order accordingly. It is well settled that “a general employee of one employer may also be in the special employ of another, notwithstanding the general employer’s responsibility for payment of wages and for maintaining workers’ compensation and other employee benefits” … . “A special employee is described as one who is transferred for a limited time of whatever duration to the service of another . . . General employment is presumed to continue, but this presumption is overcome upon clear demonstration of surrender of control by the general employer and assumption of control by the special employer” … . Although the determination of special employment status is “usually a question of fact,” such a determination “may be made as a matter of law where the particular, undisputed critical facts compel that conclusion and present no triable issue of fact” … . * * *

It appears from the record that the only person who had contact with plaintiff at Nuttall Gear was Mark Moscato, who himself was a general employee of SPS [plaintiff’s employer]. The Nuttall Gear defendants have not identified a single person, other than Moscato, who told plaintiff what to do or how to do it.  Verost v Mitsubishi Caterpillar Forklift Am Inc, 2014 NY Slip Op 0008, 4th Dept 1-2-15

 

Town Did Not Follow Its Own Procedures for Rescinding a Planned Development District–Local Law Purporting to Do So Annulled

The Third Department determined the Town of Colonie acted arbitrarily and capriciously when it enacted a Local Law restoring the original zoning after construction at the site came to a halt.  In enacting the new Local Law, the town had not followed its own procedures for rescinding a planned development district.  [The Third Department noted that the town's actions were not egregious and therefore damages based upon an alleged violation of constitutional rights (42 USC 1983) would not lie and the equal protection argument had no merit.]:

“Zoning regulations, being in derogation of the common law, must be strictly construed against the municipality which has enacted and seeks to enforce them” … . The Town Board was therefore obliged to “comply with its own procedural rules regarding enactment of the zoning ordinance” in making amendments to that ordinance … . Chapter 190 of the Code of the Town of Colonie (hereinafter referred to as Colonie Land Use Law) governs the creation and rescission of planning development districts, and Local Law No. 12 (2007) of the Town of Colonie was enacted pursuant to its terms (see Colonie Land Use Law § 190-65 et seq.). As is relevant here, Colonie Land Use Law § 190-72 permits the Town Board to rescind a planned development district and restore a property to its prior zoning under limited circumstances. The Town Board did not make the factual findings required by section 190-72, however, and the Town Attorney made clear that the Town Board was not relying upon that section in enacting Local Law No. 5. Respondents now argue that the facts of this case permitted the Town Board to rely upon section 190-72. The fact remains that the Town Board did not, however, and “a court reviewing an administrative determination must judge the propriety of such action solely on the grounds invoked by the agency, and if those grounds are inadequate or improper, the court is powerless to confirm on grounds it deems adequate or proper” … . Thus, the Town Board acted in an arbitrary and capricious manner by disregarding the provisions of the Colonie Land Use Law in enacting Local Law No. 5, and the law cannot be sustained … . Matter of Loudon House LLC v Town of Colonie, 2014 NY Slip Op 09081, 3rd Dept 12-31-14


Claimant Did Not Link Illness Caused by Ingestion of a Ubiquitous Mold to Workplace

The Third Department reversed the Workers' Compensation Board's determination that claimant had contracted an occupational disease by ingesting mold on the job at a garbage recycling and energy production facility.  Although there was mold at the plant, that same mold is ubiquitous:

Initially, Workers' Compensation Law § 2 (15) defines an occupational disease as “a disease resulting from the nature of employment and contracted therein” … . In order to demonstrate that a condition is compensable as an occupational disease, a claimant must “establish a recognizable link between his [or her] condition and a distinctive feature of his [or her] occupation through the submission of competent medical evidence” … .

Here, claimant maintained that he was exposed to the aspergillus fungus while working in the cooling tower, where he observed green plant life growing, and also in the boiler house under the ram feeder table, where there was decomposing garbage… . * * *

Carl Friedman, a pulmonary specialist who conducted an independent medical examination based upon a review of claimant's medical records, opined that claimant's respiratory condition was not causally related to his employment. Because the aspergillus fungus is ubiquitous and is found in soil everywhere, Friedman testified, claimant could have been exposed in an industrial setting or at home in his own backyard. Friedman further indicated that it could not be determined exactly when claimant was exposed or, given claimant's clinical history, the date of onset of the disease.

Based upon the foregoing, claimant has not demonstrated that his contraction of allergic bronchopulmonary aspergillosis was attributable to a distinctive aspect of his job as a maintenance mechanic and/or planner … . Matter of Connolly v Covanta Energy Corp, 2014 NY Slip Op 09076, 3rd Dept 12-31-14


Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy