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Interesting Retroactive Consent

 State: NY


Retroactive Approval of Worker's 3rd-Party Settlement Upheld


An injured worker was entitled to retroactive approval of a third-party settlement she received without the consent of her employer since her workers' compensation claim had not yet been allowed at the time of the settlement.


Case: Lindberg v. Ross, No. 515373, 04/11/2013, published.


Facts: A car driven by William Ross struck Darlene Lindberg while she was taking a walk during a layover between work assignments for her employer.


Lindberg filed a claim for workers' compensation benefits and also brought a negligence action against Ross.


Her workers' compensation claim was denied on the ground that her injury did not occur in the course of her employment and a panel of the Workers' Compensation Board affirmed the denial of her claim.


In April 2011, the full Workers' Compensation Board later rescinded the panel's decision and returned the matter to the panel for further consideration.


A week later, Lindberg settled her negligence action against Ross for $100,000, which was the limit of his insurance policy.


Three days after the settlement, a board panel restored Lindberg's comp case to the hearing calendar for September 2011.


Upon learning that the case had been restored, Lindberg's attorney asked Lindberg's employer to grant retroactive consent to Lindberg's settlement with Ross.


Her employer refused, but Chenango County Supreme Court Judge Kevin Dowd still approved of the settlement.


Analysis: The Appellate Division's 3rd Department explained that when court approval of a settlement is not sought within three months of the date of settlement, a plaintiff seeking retroactive approval must establish the reasonableness of the settlement, the lack of any fault or neglect in applying for approval and the lack of any prejudice to the carrier.


The court said it saw no abuse of discretion in Dowd's signing off of the approval Lindberg had obtained from Ross since she had received the full value of Ross' insurance policy and her six-month delay in seeking approval of the settlement was due to a justifiable belief that, at the time of settlement, her claim for benefits had not yet been allowed and there was no lien that could be assessed against her third-party recovery.


Disposition: Affirmed.


To read the decision, click here.


Source: WorkCompCentral

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