New York: Insurer’s Acceptance of Partial Reimbursement Did Not Negate its Lack of Consent to Third-Party Settlement

Where an employee has received workers’ compensation benefits for a work-related injury allegedly caused by a third-party, N.Y. Workers’ Comp. Law § 29(5) requires the employee to obtain the employer or insurer’s written consent prior to settlement and, except when the settlement is approved by a trial court on a nunc pro tunc basis, the failure to gain such prior consent disqualifies the employee from future workers’ compensation benefits. Here the workers’ compensation insurer was aware of the injured employee’s third-party suit and even accepted more than $63,000 in reimbursements for the compensation outlay, but the employee never actually sought its consent. The court stressed that the record did not indicate that the insurer actually participated in the settlement negotiations. Acceptance of the funds from the employee was insufficient to constitute a waiver of the statute’s consent requirements.

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

LexisNexis Online Subscribers: Citations below link to Lexis Advance.

See Matter of DeGennaro v. H. Sand & Co., Inc., 2021 N.Y. App. Div. LEXIS 5495 (3d Dept. Oct. 7, 2021)

See generally Larson’s Workers’ Compensation Law, § 117.01.

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

For a more detailed discussion of the case, see

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