Summary
noting that employer was not estopped "from asserting the right to an offset against future benefits"
Summary of this case from Callahan v. Image BankOpinion
January 4, 1990
Appeal from the Workers' Compensation Board.
Claimant appeals from a decision of the Workers' Compensation Board holding that he settled his third-party negligence action without the consent of the self-insured employer, International Paper Company, and that he is, accordingly, precluded from receiving further compensation benefits (see, Workers' Compensation Law § 29; Matter of Daly v. Daly Constr. Corp., 136 A.D.2d 798, 799, lv denied 72 N.Y.2d 807).
We affirm. Initially, the fact that claimant's third-party settlement purported to be for pain and suffering only is irrelevant given that the lien of Workers' Compensation Law § 29 (1) attaches to "any recovery by a compensation claimant in a third-party action" (Matter of Granger v. Urda, 44 N.Y.2d 91, 96 [emphasis in original]; see, Matter of Simmons v. St. Lawrence County CDP, 147 A.D.2d 323, 325). Moreover, whether the settlement was procured with the consent of the self-insured employer is a factual question for the Board's resolution (see, Matter of Durham v. Barker Chem. Corp., 151 A.D.2d 887; Matter of Burton v ITT Cont. Baking Co., 93 A.D.2d 921, 922). Here, the attorney who represented claimant in the third-party action conceded that the employer did not consent to the settlement, thus providing a more than adequate evidentiary foundation for the Board's determination. Nor did the employer's representation that it had no present lien estop it from asserting the right to an offset against future benefits. Significantly, the employer made no concession to induce, and appears in fact to have had no knowledge of, the settlement (see, Matter of Miller v. Arrow Carriers Corp., 130 A.D.2d 279, 281; cf., Matter of Hilton v Truss Sys., 82 A.D.2d 711, affd 56 N.Y.2d 877).
Decision affirmed, without costs. Mahoney, P.J., Kane, Casey, Levine and Mercure, JJ., concur.