| Matter of Amacio v Tully Constr. |
| 2011 NY Slip Op 01757 [82 AD3d 1371] |
| March 10, 2011 |
| Appellate Division, Third Department |
| In the Matter of the Claim of David Amacio, Appellant, v TullyConstruction et al., Respondents. Workers' Compensation Board,Respondent. |
—[*1] Vecchione, Vecchione & O'Conner, Garden City (Sean J. McKinley of counsel), for TullyConstruction and another, respondents.
Stein, J. Appeals (1) from a decision of the Workers' Compensation Board, filed February 23,2009, which, among other things, suspended claimant's workers' compensation benefits pendingproof that the employer's workers' compensation carrier consented to the settlement of claimant'sthird-party action, and (2) from a decision of said Board, filed July 3, 2009, which deniedclaimant's request for reconsideration and/or full Board review.
Claimant sustained a work-related injury in 1998 and was awarded workers' compensationbenefits. Claimant also brought a third-party negligence action in the Court of Claims, whichresulted in a settlement of $800,000 in June 2000. In October 2000, a Workers' CompensationLaw Judge (hereinafter WCLJ) found that claimant was permanently partially disabled, set hisaverage weekly wage and determined that the employer's workers' compensation carrier hadwaived its lien of $71,000. Claimant continued thereafter to receive compensation benefits of$400 per week for several years.[*2]
In 2008, the employer's current workers' compensationcarrier sought to offset claimant's compensation benefits against his third-party recovery. Bothparties were requested to produce evidence regarding whether the former carrier had waived itsright to offset the third-party recovery. Following a hearing, a WCLJ found that the formercarrier had waived its right and directed the current carrier to continue paying compensationbenefits. On review, the Workers' Compensation Board found that there was insufficientevidence that the former carrier had waived its compensation lien and the right to offset benefitpayments against the third-party recovery. The Board rescinded the WCLJ's decision andsuspended benefit payments pending the production of evidence demonstrating the formercarrier's consent. The Board subsequently denied claimant's application for reconsiderationand/or full Board review, and these appeals ensued.[FN*]
We affirm. Pursuant to Workers' Compensation Law § 29 (1), an employer or carrierhas a lien against a third-party recovery for compensation and medical expenses already paid (see Matter of Brisson v County ofOnondaga, 6 NY3d 273, 277 [2006]). The employer or carrier also has a right to offsetfuture compensation benefits against the recovery (see Workers' Compensation Law§ 29 [4]). In order for a claimant to settle a third-party action and continue to receiveworkers' compensation benefits, either the written consent of the carrier to the settlement or acompromise order from the court in which the third-party action is or was pending is required(see Workers' Compensation Law § 29 [5]; Matter of Johnson v Buffalo & ErieCounty Private Indus. Council, 84 NY2d 13, 19 [1994]; Matter of Hulbert v Cortland County Sheriff's Dept., 69 AD3d 987,988 [2010], lv denied 14 NY3d 710 [2010]; Matter of Stiffen v CNA Ins. Cos.,282 AD2d 991, 992 [2001], lv denied 97 NY2d 612 [2002]). The burden is on theclaimant to establish that the consent of the employer or carrier was obtained (see Matter ofHulbert v Cortland County Sheriff's Dept., 69 AD3d at 988).
Initially, we reject claimant's contention that the doctrine of laches bars the current carrierfrom challenging whether the former carrier consented to the settlement. "[T]he failure to assert adefense for an unreasonable and unexplained length of time, accompanied by othercircumstances causing prejudice to an adverse party, operates as a basis for the doctrine oflaches" (Matter of Finchum vColaiacomo, 55 AD3d 1084, 1085 [2008] [internal quotation marks and citationsomitted]). Here, claimant argues that there was an inexcusable delay of eight years before thecarrier contested the consent to the third-party settlement and he is prejudiced by the potentialloss of evidence of the former carrier's consent. Our review of the record reveals, however, thatthe former carrier raised a lack of consent to the settlement at a hearing in August 2000 andclaimant was directed to submit proof of such consent following that hearing, but failed to do so.In light of the fact that claimant bore the burden of establishing consent to the settlement and wason notice that such proof was required as early as August 2000, we conclude that claimant hasnot demonstrated any prejudice by such evidence being potentially unavailable at the presenttime (see generally Matter of Hopkins vAlcas Corp., Cutco Cutlery, 63 AD3d 1342, 1344 [2009]).[*3]
Turning to the merits, we find that the Board properlyfound insufficient evidence that the former carrier waived its compensation lien or its right tooffset or that it consented to the settlement. Claimant relies on the transcript of the settlementagreement, during which the defendant, the State of New York, agreed to the $800,000 amountand indicated that it was authorized to consent to claimant receiving that sum and also continuingto receive workers' compensation benefits. Neither the employer nor the former carrier was aparty to that action, nor were they present when the settlement was placed on the record, andthere is no evidence that either consented in writing to its terms or gave authority to thethird-party defendant to confer such consent. Moreover, although the transcript reflects thatclaimant's attorney had spoken to the former carrier and was informed of the exact amount of itsworkers' compensation lien, there is no evidence that the former carrier agreed to waive the lien."The question of whether a settlement was procured with the proper consent of the carrier is afactual issue for the Board to determine" (Matter of Wright v Golden Arrow Line, 206AD2d 759, 760 [1994] [citations omitted]). Absent any proof in the record that the employer orcarrier either consented to the settlement agreement or to waiving the lien, or that claimantsought judicial approval of the settlement, we find no reason to disturb the Board's decision(see Matter of Johnson v Buffalo & Erie County Private Indus. Council, 84 NY2d at19-20; Matter of Waters v City of New York, 273 AD2d 786, 786-787 [2000], lvdenied 95 NY2d 765 [2000]).
Claimant's remaining argument has been considered and found to be without merit.
Mercure, J.P., Peters, Malone Jr. and Kavanagh, JJ., concur. Ordered that the decisions areaffirmed, without costs.
Footnote *: Inasmuch as claimant fails toraise any issue with respect to his separate appeal from the Board's denial of his application forreconsideration and/or full Board review, we deem that appeal to be abandoned (see Matter of Grill v Fashion Inst. ofTech., 74 AD3d 1685, 1686 n [2010]).