| Matter of Hulbert v Cortland County Sheriff's Dept. |
| 2010 NY Slip Op 00027 [69 AD3d 987] |
| January 7, 2010 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Mark Hulbert, Respondent, vCortland County Sheriff's Department et al., Appellants. Workers' Compensation Board,Respondent. |
—[*1] Phyllis I. Hulbert, Rotanda, Florida, as power of attorney for Mark Hulbert, respondent. Andrew M. Cuomo, Attorney General, New York City (Iris A. Steel of counsel), forWorkers' Compensation Board, respondent.
Stein, J. Appeals (1) from a decision of the Workers' Compensation Board, filed August 8,2007, which ruled that the employer was responsible for the payment of certain of claimant'smedical bills, and (2) from a decision of said Board, filed April 22, 2008, which denied theemployer's request for full Board review.
Claimant, a former Cortland County Sheriff's Deputy, sustained serious injuries to his headand right elbow during a jailbreak at the Cortland County Jail in September 1981. Following oneof several surgeries to repair damage to his elbow, claimant ultimately developed a bacterialinfection in his aortic valve, causing him to suffer a heart attack and stroke, which eventually ledto paralysis of one side of his body and aphasia. Following a hearing in December 1984, aWorkers' Compensation Law Judge (hereinafter WCLJ) found claimant to be permanentlyphysically disabled as a result of injuries sustained while at work and awarded him benefits.[*2]
Between August 2005 and January 2006, claimantunderwent emergency care for an infection of the area where a pacemaker had been installed atthe time of his heart attack and amassed substantial medical bills that the self-insured employerdisputed. A hearing was scheduled at which the WCLJ gave the employer an adjournment topresent contrary medical evidence. At a subsequent hearing in March 2006, the employerconceded that the disputed bills were causally related to a compensable injury, but indicated thatit was investigating whether claimant had settled a third-party malpractice action related to hiscompensable injuries without the employer's consent. The matter was subsequently adjournedseveral times to afford the employer time to investigate its claim regarding a possible settlement.At the final hearing in January 2007, the employer stated that it had discovered no informationother than that a lawsuit had been commenced. Claimant's current wife testified that claimanthad no recollection of commencing or discontinuing a malpractice action[FN*]and the WCLJ found for the medical providers with regard to the disputed bills. After the WCLJannounced his determination, the employer argued for the first time that it was claimant'sobligation to produce information regarding the status of the malpractice action.
The employer then applied for review by the Workers' Compensation Board, contending thatit had evidence that claimant had settled or discontinued a third-party lawsuit without its consent.Two months later, the employer supplemented its application for review with a copy of astipulation of discontinuance in a malpractice action. Nevertheless, the Board found that theWCLJ had "acted appropriately and within his discretion in denying the self-insured employerfurther opportunity to defend the claim" and commented that the employer did not file a copy ofthe stipulation of discontinuance with the Board in a timely manner and failed to explain why itcould not have been produced at an earlier date. The employer now appeals from the Board'sdecision and from the denial of its application for full Board review.
We affirm. It is well settled that, if a third-party action relating to an injury also subject to aworkers' compensation claim is settled without the consent of the employer/carrier or acompromise order, the claimant forfeits any further benefits for which a recovery might havebeen had in the third-party action (see Workers' Compensation Law § 29 [5];Matter of Johnson v Buffalo & Erie County Private Indus. Council, 84 NY2d 13, 19-20[1994]), and the claimant bears the burden of establishing that the employer's consent wasobtained (see Employer: NYC Tr. Auth., 2002 WL 231989, *1, 2002 NY Wrk CompLEXIS 87935, *3 [WCB No. 0975 4254, Feb. 7, 2002]). We note that the employer's contentionhere that claimant failed to meet that burden is not preserved for our review since it was firstraised after the WCLJ rendered his decision (see Matter of Weingarten v PathmarkStores, 256 AD2d 648, 650 [1998]; Matter of Gregg v Randazzo, 216 AD2d 747,749 [1995]). In any event, the employer failed to present any evidence to the WCLJ that claimanthad commenced a malpractice action, let alone settled or [*3]discontinued such action. Therefore, claimant's duty to demonstratethe employer's consent never arose (compare Matter of Russo v M & M Transp., 127AD2d 931 [1987], lv denied 70 NY2d 602 [1987]).
The WCLJ's refusal to adjourn the January 2007 hearing to provide the employer with afurther opportunity to obtain authorizations and present evidence is not a ground for Boardreview (see 12 NYCRR 300.10 [b]). Moreover, the Board did not abuse its discretion indeclining to consider the stipulation of settlement, presented for the first time in the applicationfor review, inasmuch as the lapse of approximately 10 months between the time the employerfirst raised the possibility of a settlement in a third-party action and the date of the final hearingevidenced a lack of diligence on the employer's part in investigating that matter (12 NYCRR300.13 [g]; see Matter of Heustis v Teriele, 193 AD2d 934, 935 [1993]). Additionally, asnoted by the Board, although the employer referred to the stipulation of discontinuance in itsinitial application for review, the employer did not submit the stipulation until several monthslater—after the 30-day period to apply for review had run—thus permitting theBoard to refuse to consider it (see 12 NYCRR 300.13 [a], [e] [2]).
Nor do we find any abuse of discretion in the denial of full Board review of the unanimouspanel decision, as the employer proffered no new evidence in support of its application(see Workers' Compensation Law §§ 23, 142 [2]; Matter of Green v Kimber Mfg., Inc.,59 AD3d 782, 783 [2009], lv dismissed 12 NY3d 865 [2009]; Matter of Grahamv Pathways, Inc., 305 AD2d 830, 831 [2003], lv dismissed 1 NY3d 564 [2003];Matter of Howard v New York Times, 302 AD2d 698, 699-700 [2003], lv dismissedand denied 100 NY2d 531 [2003]).
Peters, J.P., Lahtinen, Malone Jr. and Kavanagh, JJ., concur. Ordered that the decisions areaffirmed, with costs to claimant.
Footnote *: Claimant was unable topersonally appear or testify due to his debilitating condition and his current wife had no personalknowledge regarding the alleged settlement as she was not married to claimant at the time. It wasalleged that claimant's former wife had previously exercised total control over claimant'sfinancial affairs. Notwithstanding the employer's knowledge of this assertion, there is noindication in the record that the employer made any effort to contact claimant's former wife.