Opinion
October 24, 1967
Appeal by the employer and its carrier from a decision of the Workmen's Compensation Board ordering an award of deficiency compensation. Claimant, a sign painter, was injured when he fell from a scaffold as the result of the negligence of a third party. Claimant's right to compensation was not disputed and payments totalling $4,131.86 ($1,482.61 in compensation payments and $2,649.25 in medical payments) had been made when the claimant received a settlement offer of $11,000 from the third party. While the carrier had a total lien thereon of $4,131.86 (Workmen's Compensation Law, § 29, subd. 1) the board has found that the carrier pursuant to subdivision 4 of section 29 agreed to take only $3,500 in satisfaction of its lien, leaving $3,591.56 for counsel fees and $3,908.44 for the claimant. The board eventually determined that claimant was entitled to $4,290 for a permanent partial loss of use of the right leg and $400 for serious facial disfigurement. From this total of $4,690 is subtracted the sum of $1,482.61, the amount found to have been already received by claimant from the carrier and assessed a deficiency of $3,207.39. In so doing it expressly rejected appellants' contention that the carrier be credited with the $3,908.44 received directly by the claimant in the third-party action. Initially the appellants assert here that the carrier did not consent at all to the settlement. Since, however, this issue was not raised before the board it is clearly not subject to our review (e.g. Matter of Galvez v. Gold Coast Enterprises, 23 A.D.2d 600). Moreover, if it had been properly raised, there is clearly substantial evidence in the record to support the board's determination on this issue. With respect to the issue of the amount of the deficiency, while we cannot agree with the board's method of expressing its calculations, we do concur in the result reached. Since the carrier agreed to limit its lien on the proceeds to a total of $3,500, the $3,908.44 received by claimant was not subject to the carrier's lien and thus does not figure at all in the calculation ( Matter of Rosenberg v. Schector Co., 20 A.D.2d 606). The record reveals that the total amount due claimant was $7,339.25, $2,649.25 in medical payments and $4,690 in compensation benefits. From this figure the carrier is entitled to a credit of $3,500 for its lien and for the $631.86 actually already paid out by the carrier over and above the $3,500 credit for a total credit of $4,131.86 which when subtracted from the $7,339.25 due leaves a deficiency of $3,207.39 as found by the board (see Matter of Rosenberg v. Schector Co., supra). Decision affirmed, with costs to the Workmen's Compensation Board. Herlihy, J.P., Reynolds, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Reynolds, J.