| Matter of Catapano v Jow, Inc. |
| 2012 NY Slip Op 00085 [91 AD3d 1018] |
| Jnury 5, 2012 |
| Appellate Division, Third Department |
| In the Matter of Charles A. Catapano, Respondent, v Jow, Inc., etal., Appellants, and Special Disability Fund, Respondent. Workers' Compensation Board,Respondent. |
—[*1] Steven M. Licht, Special Funds Conservation Committee, Albany (Jill B. Singer of counsel),for Special Disability Fund, respondent.
Malone Jr., J. Appeal from a decision of the Workers' Compensation Board, filed September28, 2010, which, upon remittal, found that the Special Disability Fund's consent to a third-partysettlement was required.
Claimant was injured at work and a workers' compensation claim was established. Liabilityof the Special Disability Fund pursuant to Workers' Compensation Law § 15 (8) (d) wasthereafter established. Claimant settled a third-party personal injury action arising out of theaccident with the consent of the employer's workers' compensation carrier. However, the consentof the Fund to the settlement was not obtained. As a result, the Fund refused to reimburse thecarrier for payments of deficiency compensation. The Workers' Compensation Board initiallyheld that the Fund's consent was not required. However, on appeal we determined that this [*2]decision was inconsistent with Board precedent and, because theBoard did not set forth its reasons for deviating from the precedent, we remitted the matter forfurther proceedings (73 AD3d 1361 [2010]). Upon remittal, the Board held that the Fund'sconsent to the settlement was required and the carrier's failure to obtain such consent resulted in aforfeiture of further reimbursement from the Fund. The employer and its carrier now appeal.
As noted in our prior decision, "[t]he Board has previously held that where the Fund has beenfound 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 the Fund's consent to asettlement" (id. at 1362; see Matter of Care Diagnostic Laboratory, 2006 WL832793, *2, 2006 NY Wrk Comp LEXIS 2612, *4 [WCB No. 2931 7021, Mar. 28, 2006];Matter of Brigotta Farmland, 2006 WL 1064007, *2-4, 2006 NY Wrk Comp LEXIS3343, *5-10 [WCB No. 8021 3739, Apr. 18, 2006]). Upon remittal, the Board found that thiscase is factually indistinguishable from its prior decisions and, therefore, treated it consistentlytherewith. Inasmuch as the Board's decision represents a rational, consistent interpretation andapplication of the relevant statute, we will not disturb it (see Workers' CompensationLaw § 29; see also Matter of Drewes v Guterl Steel, 305 AD2d 769, 770 [2003];Matter of State Farm Mut. Auto. Ins. Co. v Levin, 263 AD2d 233, 237 [2000], lvdenied 95 NY2d 754 [2000]).
Spain, J.P., Stein, McCarthy and Egan Jr., JJ., concur. Ordered that the decision is affirmed,without costs.