| Matter of Catapano v Jaw, Inc. |
| 2010 NY Slip Op 04300 [73 AD3d 1361] |
| May 20, 2010 |
| Appellate Division, Third Department |
| In the Matter of the Claim of Charles A. Catapano, Respondent, vJaw, Inc., et al., Respondents, and Special Disability Fund, Appellant. Workers' CompensationBoard, Respondent. |
—[*1] Gregory J. Allen, State Insurance Fund, Melville (Janis M. Riekstins of counsel), for StateInsurance Fund and another, respondents.
Malone Jr., J. Appeal from a decision of the Workers' Compensation Board, filed November24, 2008, which, among other things, found that the Special Disability Fund's consent to athird-party settlement was not required.
Claimant suffered injuries in an accident at work, and this workers' compensation claim wasestablished in 1996. The employer's workers' compensation carrier then filed a notice of [*2]claim for reimbursement out of the Special Disability Fund and, in2000, the Fund was found liable for reimbursement pursuant to Workers' Compensation Law§ 15 (8) (d). Shortly thereafter, claimant settled a personal injury action arising out of theaccident, and the carrier gave its consent to the settlement, waived its lien on the proceeds andtook a credit against claimant's net recovery (see Workers' Compensation Law §29 [4], [5]; Burns v Varriale, 34AD3d 59, 61 [2006], affd 9 NY3d 207 [2007]). The Fund's consent to the settlementwas not sought and, as a result, it refused to reimburse payments of deficiency compensationmade by the carrier. The Workers' Compensation Board ultimately held that the Fund's consentwas not required, and the Fund appeals.
While the Board is free to alter a course previously set out in its decisions, it must set forthits reasons for doing so, and the Board's failure to do so renders its decision arbitrary andcapricious (see Matter of Charles A. Field Delivery Serv. [Roberts], 66 NY2d 516, 520[1985]; Matter of Hernandez v TacoBell, Inc., 52 AD3d 891, 893 [2008]). The Board has previously held that where theFund has been found liable for reimbursement to the carrier under Workers' Compensation Law§ 15 (8) (d), the carrier waives its right to that reimbursement if it does not obtain theFund's consent to a settlement (see Matter of Care Diagnostic Lab., 2006 WL 832793,*2, 2006 NY Wrk Comp LEXIS 2612, *4 [WCB No. 2931 7021, Mar. 28, 2006]; see e.g.Matter of Brigotta Farmland, 2006 WL 1064007, *2-4, 2006 NY Wrk Comp LEXIS 3343,*5-10 [WCB No. 8021 3739, Apr. 18, 2006]). Indeed, the carrier here readily admits that thecited precedent does not support the Board's present holding, but nonetheless argues that theprior cases were wrongly decided. However, as that prior precedent was not addressed in anyway in the Board's decision, we must remit this matter for further proceedings.
Cardona, P.J., Mercure, Lahtinen and Egan Jr., JJ., concur. Ordered that the decision isreversed, without costs, and matter remitted to the Workers' Compensation Board for furtherproceedings not inconsistent with this Court's decision.