New York: Employee May Obtain Nunc Pro Tunc Approval of Settlement Only if Suit Is Actually Filed

Where an injured employee never commences a third-party action to recover for injuries arising out of the same incident as his or her workers’ compensation claim, but settles the claim for less than the amount of compensation he or she has received, a New York trial court is without authority to approve a settlement nunc pro tunc under N.Y. Work. Comp. Law § 29(5). Accordingly, where the third party’s liability insurance carrier tendered the limits of its policy ($25,000) to the injured employee and the employee accepted that sum without obtaining the permission of the workers’ compensation carrier, it was error for the trial court to approve the settlement.

Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is the co-author of Larson’s Workers’ Compensation Law (LexisNexis).

LexisNexis Online Subscribers: Citations below link to Lexis Advance. Bracketed citations link to lexis.com.

See Russo v. New Hampshire Ins. Co., 2015 N.Y. App. Div. LEXIS 8820 (Nov. 25, 2015) [2015 N.Y. App. Div. LEXIS 8820 (Nov. 25, 2015)]

See generally Larson’s Workers’ Compensation Law, § 116.07 [116.07]

Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law.

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