This memorandum is uncorrected and subject to revision before

publication in the New York Reports.

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No. 177 

Ace Fire Underwriters Insurance 

Company, &c.,

 Appellant,

 v.

Special Funds Conservation 

Committee,

 Respondent.

Lisa Levine, for appellant.

Jill B. Singer, for respondent.

MEMORANDUM:

The order of the Appellate Division should be reversed,

with costs, and the matter remitted to Supreme Court for further

proceedings in accordance with this memorandum.

A Coca-Cola Bottling Company employee sustained a workrelated injury in March 2007 and was awarded workers'

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compensation benefits. The benefits are payable by petitioner

Ace Fire Underwriters Insurance Co. (Ace Fire), Coca-Cola's

workers' compensation insurance carrier.

The employee was classified as having a permanent

partial disability and the Workers' Compensation Board held that

his claim was subject to Workers' Compensation Law § 15 (8). 

Under that provision, when an employee with a preexisting

permanent physical injury sustains a compensable work-related

injury that leads to a permanent disability significantly greater

than that which would have resulted from the subsequent injury

alone, the Special Disability Fund is responsible for reimbursing

the workers' compensation carrier for all medical and

compensation benefits payable after the first 260 weeks of

disability (see Workers' Compensation Law § 15 [8] [d]). Section

15 (8) was intended to encourage employers to hire disabled

employees (see Workers' Compensation Law § 15 [8] [a]).

Based on section 15 (8), the injured employee's

workers' compensation benefits in this case were, to the extent

payable after the first 260 weeks of disability, reimbursable by

the Special Disability Fund. In addition to receiving workers'

compensation benefits, the injured employee commenced a thirdparty personal injury action in Supreme Court. As relevant here,

under Workers' Compensation Law § 29 (1), if the injured employee

elects to bring a third-party action, "the person, association,

corporation or insurance carrier" that is liable for workers'

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compensation and medical expenses is entitled to "a lien on the

proceeds of any recovery" in the third-party action, less

reasonable and necessary expenses. The "recovery shall be deemed

for the benefit of such . . . person, association, corporation or

carrier," to the extent of the amount payable by the lienor

(Workers' Compensation Law § 29 [1]).

The same statute further provides that, when the thirdparty settlement is in an amount less than the benefits payable

to the injured employee, it "shall be made only . . . with the

written approval of the person, association, corporation, or

insurance carrier liable to pay the same" (Workers' Compensation

Law § 29 [5]). However, such written approval "need not be

obtained if the employee . . . obtain[s] a compromise order from

a justice of the court in which the third-party action was

pending" (Workers' Compensation Law § 29 [5]). In other words,

although the employee must obtain the written approval of the

workers' compensation carrier prior to entering a settlement, the

failure to do so can be cured by the court ordering the carrier's

consent to the personal injury settlement, nunc pro tunc. 

Notably, neither section 29 (5) nor section 15 (8) specifically

requires the carrier to obtain the Special Disability Fund's

approval prior to agreeing to a third-party settlement.

Here, as required by section 29, the injured employee

sought and obtained Ace Fire's approval prior to entering the

settlement of the third-party action. Ace Fire, however, did not

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seek the Special Disability Fund's written approval prior to

settlement. When Ace Fire sought the Special Disability Fund's

retroactive consent, the Fund refused, asserting that Ace Fire

had forfeited its right to reimbursement. Ace Fire then

commenced this proceeding asking Supreme Court to compel the

Special Disability Fund's consent nunc pro tunc under Workers'

Compensation Law § 29 (5). 

We have repeatedly recognized "that a statute . . .

must be construed as a whole and that its various sections must

be considered together and with reference to each other" (Matter

of Shannon, 25 NY3d 345, 351 [2015] [quotation marks and

citations omitted]). The language in section 29 (1) establishing

what entities may be deemed lienors is essentially identical to

the language in section 29 (5) referring to the entities whose

consent to settlement is required and, if not obtained, can be

compelled upon application to the court -- i.e., the "person,

association, corporation, or insurance carrier liable to pay"

compensation benefits. Here, the parties do not dispute that the

consent of the Special Disability Fund to settlement of the

employee's third party action was required. Thus, assuming, for

purposes of this appeal, that the Special Disability Fund is a

lienor whose consent to settlement is required under Workers'

Compensation Law § 29 (1), we conclude that the carrier may seek

to obtain the Fund's consent from Supreme Court nunc pro tunc

under section 29 (5). There is no principled basis for

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concluding that the Special Disability Fund's consent is required

as a lienor under one portion of the statute, but that the

failure to obtain it cannot be cured, as it can for other

lienors, under the same statute. 

* * * * * * * * * * * * * * * * *

Order reversed, with costs, and matter remitted to Supreme Court,

New York County, for further proceedings in accordance with the

memorandum herein. Chief Judge DiFiore and Judges Pigott,

Rivera, Abdus-Salaam, Stein, Fahey and Garcia concur.

Decided November 22, 2016

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