New York: Claimant Entitled to Approval Nunc Pro Tunc Where Inactivity on Part of Insurer Lulled Claimant Into Believing Carrier’s Lien Had Been Waived

Where an injured worker settled a third-party action against an alleged tortfeasor for $800,000, with the workers’ compensation insurer having previously paid some $71,000 in benefits, the worker was entitled to an order approving a settlement of the tort claim nunc pro tunc under N.Y. Workers’ Comp. Law § 29(5), where the worker’s delay in obtaining the carrier’s approval was not attributable to the fault or neglect of the claimant, but to the fact that the claimant’s counsel and counsel for the third-party believed the carrier had waived its lien on past payments and the insurer continued to pay workers’ compensation benefits to the claimant, without seeking any credit, for eight years after the settlement. In continuing to pay without seeking credit, the carrier had unwittingly lulled the claimant into believing it was willing to waive its lien to the $71,000 it had paid, said the court.

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 Amacio v. State of N.Y., 2015 N.Y. App. Div. LEXIS 6164 (1st Dep’t, July 28, 2015) [2015 N.Y. App. Div. LEXIS 6164 (1st Dep’t, July 28, 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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