NY Work Comp L § 29 (2021)
2021 New York Laws WKC - Workers' Compensation Article 2 - Compensation 29 - Remedies of Employees; Subrogation.

§  29.  Remedies of employees; subrogation. 1. If an employee entitled   to  compensation  under  this  chapter  be  injured  or  killed  by  the   negligence  or  wrong  of  another  not in the same employ, such injured   employee, or in case of death, his dependents, need not elect whether to   take compensation and medical benefits under this chapter or  to  pursue   his remedy against such other but may take such compensation and medical   benefits and at any time either prior thereto or within six months after   the  awarding  of compensation or within nine months after the enactment   of a law or laws creating, establishing or affording a new or additional   remedy or remedies, pursue his remedy against such other subject to  the   provisions  of  this  chapter.  If  such injured employee, or in case of   death, his dependents, take or intend to take compensation, and  medical   benefits  in  the  case of an employee, under this chapter and desire to   bring action against such other, such action must be commenced not later   than six months after the awarding of compensation  or  not  later  than   nine   months  after  the  enactment  of  such  law  or  laws  creating,   establishing or affording a new or additional remedy or remedies and  in   any  event  before  the expiration of one year from the date such action   accrues. In such case, the state  insurance  fund,  if  compensation  be   payable therefrom, and otherwise the person, association, corporation or   insurance  carrier  liable  for the payment of such compensation, as the   case may be, shall have a lien on the proceeds of any recovery from such   other, whether by judgment, settlement or otherwise, after the deduction   of the reasonable and necessary expenditures, including attorney's fees,   incurred in effecting such recovery, to the extent of the  total  amount   of  compensation  awarded under or provided or estimated by this chapter   for such case and the expenses for medical treatment paid or to be  paid   by  it  and to such extent such recovery shall be deemed for the benefit   of such fund, person, association, corporation or  carrier.  Should  the   employee or his dependents secure a recovery from such other, whether by   judgment, settlement or otherwise, such employee or dependents may apply   on  notice  to  such lienor to the court in which the third party action   was instituted, or to a court of competent jurisdiction if no action was   instituted, for an  order  apportioning  the  reasonable  and  necessary   expenditures,  including  attorneys'  fees,  incurred  in effecting such   recovery. Such expenditures shall be equitably apportioned by the  court   between  the  employee  or  his dependents and the lienor. Notice of the   commencement of such action shall be given within thirty days thereafter   to the chairman, the employer and the  insurance  carrier  upon  a  form   prescribed   by   the  chairman.  Any  of  the  foregoing  providers  of   compensation and/or medical benefits which has recovered a lien pursuant   to the provisions hereof against the recovery of a person injured on  or   after  February  first,  nineteen  hundred  seventy-four and before July   first, nineteen hundred seventy-eight, through the use or operation of a   motor vehicle in this state, shall notify such person by certified  mail   in  a  manner  to  be approved by the chairman and the superintendent of   financial services of the responsibility of an "insurer" (as defined  in   subsection (g) of section five thousand one hundred two of the insurance   law),  to  reimburse  such person under such circumstances to the extent   that the recovered lien represent first party  benefits  as  defined  in   article fifty-one of the insurance law.1-a.  Notwithstanding  any  other provision of this chapter, the state   insurance fund, if  compensation  and/or  medical  benefits  be  payable   therefrom,  or otherwise the person, association, corporation, insurance   carrier or statutory fund liable for the payment  of  such  compensation   and/or  medical  benefits  shall  not have a lien on the proceeds of any   recovery received pursuant to subsection (a) of  section  five  thousand   one  hundred  four of the insurance law, whether by judgment, settlement    or otherwise for compensation and/or medical benefits paid which were in   lieu of first party benefits which another insurer would have  otherwise   been  obligated to pay under article fifty-one of the insurance law. The   sole  remedy  of  any of the foregoing providers to recover the payments   specified in the preceding sentence shall be pursuant to the  settlement   procedures  contained  in  section five thousand one hundred five of the   insurance law.1-b. Notwithstanding any  other  provision  of  this  chapter  to  the   contrary,  the  state  insurance  fund,  if  compensation and/or medical   benefits be payable therefrom, or  otherwise  the  person,  association,   corporation,  insurance carrier or statutory fund liable for the payment   of such compensation and/or medical benefits: (a) shall not have a  lien   on  the  proceeds  of  any  award  from  the  September  eleventh victim   compensation fund of two thousand one established pursuant to  title  IV   of  the  federal air transportation safety and system stabilization act,   public law 107-42, as amended; and (b) shall  not  terminate  or  reduce   such compensation and/or medical benefits based upon the submission of a   claim  for  an  award  from  such  federal  fund,  and/or  the waiver or   compromise of any cause of action resulting from such submission.2. If such injured employee, or in case of death, his dependents,  has   taken  compensation under this chapter but has failed to commence action   against such other within the time limited therefor by subdivision  one,   such  failure  shall  operate  as  an  assignment of the cause of action   against such other to the state for the benefit of the  state  insurance   fund, if compensation be payable therefrom, and otherwise to the person,   association, corporation, or insurance carrier liable for the payment of   such  compensation.  Except  as hereinafter provided, the failure of the   injured employee or his dependents to commence an action pursuant to the   provisions of subdivision one of this section, shall not operate  as  an   assignment  of  the  cause  of  action  as  provided  herein, unless the   insurance carrier  shall  have  notified  the  claimant  in  writing  by   personal  service  or  by  certified  or registered mail, return receipt   requested, at least thirty days prior to  the  expiration  of  the  time   limited  for the commencement of an action by subdivision one, that such   failure to commence such  action  shall  operate  as  an  assignment  of   whatever  cause  of  action  may exist to such insurance carrier. If the   insurance carrier shall fail to give such notice, the time  limited  for   the commencement of an action by subdivision one shall be extended until   thirty days after the insurance carrier shall have notified the claimant   in  writing  that failure to commence an action within thirty days after   the mailing of such notice shall operate as an assignment of  the  cause   of  action  to  such  carrier,  and  in  the event the claimant fails to   commence such action within  thirty  days  after  the  mailing  of  such   notice,  such  failure  shall  operate as an assignment of such cause of   action to such carrier. If such fund, person,  association,  corporation   or  carrier,  as  such  an  assignee, recover from such other, either by   judgment, settlement or otherwise, a sum in excess of the  total  amount   of  compensation  awarded to such injured employee or his dependents and   the expenses for  medical  treatment  paid  by  it,  together  with  the   reasonable   and  necessary  expenditures  incurred  in  effecting  such   recovery, it shall  forthwith  pay  to  such  injured  employee  or  his   dependents,  as  the  case may be, two-thirds of such excess, and to the   extent of two-thirds of any such excess such recovery  shall  be  deemed   for   the   benefit  of  such  employee  or  his  dependents.  When  the   compensation awarded requires periodical payments the  number  of  which   cannot  be  determined  at the time of such award, the board shall, when   the injury or death was caused by the negligence or wrong of another not   in the same employ, estimate the probable total amount thereof upon  the    basis  of the survivorship annuitants table of mortality, the remarriage   tables of the Dutch Royal Insurance Institution and such facts as it may   deem pertinent, and such estimate shall be  deemed  the  amount  of  the   compensation  awarded  in  such  case,  for the purpose of computing the   amount of such excess recovery, subject to the modification  thereof  as   hereinafter  provided.  If  any  of the foregoing providers, having paid   benefits under this chapter to  an  injured  employee,  who  is  also  a   "covered  person" (as defined in subsection (j) of section five thousand   one hundred two of the insurance law), and who was injured  in  a  motor   vehicle  accident  in  this  state on and after February first, nineteen   hundred  seventy-four  and   before   July   first,   nineteen   hundred   seventy-eight,  maintains  an  action,  as  assignee, against such third   party, who  is  also  a  "covered  person",  and  recovers,  whether  by   judgment, settlement or otherwise, it shall advise the injured employee,   by  certified  mail,  in a manner to be approved by the chairman and the   superintendent of  financial  services,  of  the  responsibility  of  an   "insurer"  (as  defined  in  subsection (g) of section five thousand one   hundred two of the insurance law) to  further  compensate  such  injured   employee.2-a. Notwithstanding any other provisions of this chapter, the failure   of  a  "covered  person"  (as  defined in subsection (j) of section five   thousand  one  hundred  two  of  the  insurance  law),  who  has   taken   compensation  and/or  medical  benefits  under this chapter for injuries   arising out of the use or operation of a motor vehicle in this state, to   commence an action against such other within the time  limited  therefor   by subdivision one of this section shall not operate as an assignment of   the cause of action to the provider thereof for their recovery when such   benefits were paid in lieu of first party benefits which another insurer   would  have  otherwise  been obligated to pay under article fifty-one of   the insurance law, unless such other is not a "covered person". The sole   remedy of any  of  the  foregoing  providers  to  recover  the  payments   specified  in  the preceding sentence when the other party is a "covered   person" shall be pursuant to  the  settlement  procedures  contained  in   section five thousand one hundred five of the insurance law.3.  In  the  event  of  a  modification  of  an  award  increasing the   compensation previously awarded or in the event that the total amount of   periodical payments made pursuant to an award under which the number  of   such  payments  could  not be determined at the time of the award, shall   exceed the total thereof as estimated by the board, the principal of any   of such excess recovery theretofore paid to such injured employee or his   dependents shall be credited against such increase or  such  excess.  In   the  event  of  a  modification  of  an  award ending or diminishing the   compensation previously awarded or in the event that the total amount of   periodical payments made pursuant to an award under which the number  of   such payments could not be determined at the time of the award, shall be   less  than  the  total  thereof  as  estimated  by the board, such fund,   person, association, corporation or carrier shall forthwith pay to  such   injured  employee  or his dependents, as the case may be, any additional   amount of such excess recovery to which such  injured  employee  or  his   dependents  may  be  entitled  by  reason  of  such modification or such   deficiency, determined as hereinbefore provided.4. If such injured employee, or in  case  of  death,  his  dependents,   proceed   against   such   other,  the  state  insurance  fund,  person,   association, corporation, or insurance carrier,  as  the  case  may  be,   shall  contribute only the deficiency, if any, between the amount of the   recovery  against  such  other  person  actually  collected,   and   the   compensation provided or estimated by this chapter for such case. 5.  In case of the payment of an award to the commissioner of taxation   and finance in accordance with subdivisions eight and  nine  of  section   fifteen  and in accordance with section twenty-five-a such payment shall   operate to give to the employer or  insurance  carrier  liable  for  the   award a cause of action for the amount of such payment together with the   reasonable  funeral  expenses and the expense of medical treatment which   shall be in addition to any cause of action by the legal representatives   of the deceased. Such a cause of action assigned to  the  state  may  be   prosecuted or compromised in the name of the state insurance fund by the   commissioners  of  the  state  insurance  fund. A compromise of any such   cause of action by the employee or his dependents at an amount less than   the compensation provided for by this chapter shall be  made  only  with   the written approval of the commissioners of the state insurance fund or   such   officer   thereof  designated  by  them,  if  the  deficiency  of   compensation would  be  payable  from  the  state  insurance  fund,  and   otherwise   with  the  written  approval  of  the  person,  association,   corporation, or insurance carrier  liable  to  pay  the  same.  However,   written  approval  of  the  commissioners of the state insurance fund or   such officer thereof designated by  them  or  written  approval  of  the   person,  association,  corporation, or the insurance carrier need not be   obtained if the employee or his dependents  obtain  a  compromise  order   from a justice of the court in which the third-party action was pending.   The  papers  upon  an  application to compromise and settle such a claim   shall consist of the petition, the affidavit of the  attorney,  and  the   affidavit of one or more physicians.The petition shall contain the following:a.  The  name  and  residence  of  the  petitioner if the employee, or   petitioner's relationship to the deceased;b. The date of accident and a general description thereof;c. The nature and extent of the damages sustained, including the  name   of  the physician or physicians attending or consulting in the treatment   and the medical expenses incurred, the period  of  disability  resulting   from  the  accident,  the  total  amount  of wages lost thereby, and the   present physical condition;d. The terms of the attorney's retainer and of the proposed settlement   and petitioner's approval thereof; ande. Whether any previous application for the settlement  of  the  claim   has  been made, and if so, the time and the court or justice thereof and   the disposition made of same.The affidavit of the attorney shall set forth by whom,  on  what  date   and  under what terms he was retained, the services rendered by him, his   fee if the settlement is approved, the acts complained of, the terms  of   the proposed settlement with a statement of his reasons for recommending   the  same,  and  shall  state  that  he  has not become concerned in the   application or its subject matter at  the  instance  of  such  defendant   directly  or  indirectly  and  that  he  has  not received and is not to   receive any compensation from such defendant directly or indirectly.The affidavit of the physician in a claim arising from personal injury   to the employee, shall set forth  his  connection  with  the  case;  the   period  covered  by the treatment and the nature, duration and extent of   the injuries; the date of his last examination and the condition of  the   employee  at  that  time; whether or not the employee is still suffering   any disability or inconvenience as the result of the injury, giving  the   details  thereof; whether or not the accident has left the employee with   any permanent disability, defect, scar or impairment; the  cost  of  the   treatment  and  whether or not he expects to be paid or has been paid by   the defendant or by anyone acting on the defendant's behalf.  Where  the   affidavit  as  to  the  present  condition  is not made by the attending    physician, the latter's affidavit setting forth  the  character  of  the   injuries and treatment should also be attached, or the failure to obtain   it  explained.  Where the employee was confined to a hospital, the court   may require the production of hospital records.A  copy  of the papers to be used on the application to compromise and   settle the claim must be served as directed by the court or in the  same   manner  as  provided in the civil practice law and rules for a notice of   motion upon the commissioners  of  the  state  insurance  fund  or  such   officer  thereof  designated  by  them  or upon the person, association,   corporation, or insurance carrier, whose  written  approval  would  have   been  required to compromise such cause of action by the employee or his   dependents. This notice shall afford  them  the  opportunity  to  submit   affidavits and to be heard by the court on the application.If  the  third-party  action  is  on  trial  at  the time the offer of   settlement which is acceptable to the plaintiff, is made and either such   written approval or order as provided in this subdivision  is  required,   the action may be marked settled subject to the securing of such written   approval  or  such  order. If such written approval or such order is not   subsequently secured within three months the action shall be restored to   the head of the trial day calendar.6. The right to compensation or benefits under this chapter, shall  be   the  exclusive  remedy  to  an  employee, or in case of death his or her   dependents, when such employee is injured or killed by the negligence or   wrong of another in the same  employ,  the  employer's  insurer  or  any   collective bargaining agent of the employer's employees or any employee,   of such insurer or such collective bargaining agent (while acting within   the  scope  of his or her employment). The limitation of liability of an   employer set forth in section eleven of this article for the  injury  or   death  of an employee shall be applicable to another in the same employ,   the  employer's  insurer,  any  collective  bargaining  agent   of   the   employer's  employees  or any employee of the employer's insurer or such   collective bargaining agent (while acting within the scope of his or her   employment). The option to maintain an action in the courts for  damages   based  on  the  employer's  failure  to  secure compensation for injured   employees and their dependents as set forth in section  eleven  of  this   article  shall  not  be  construed  to  include the right to maintain an   action against another in the same employ, the employer's  insurer,  any   collective  bargaining agent of the employer's employees or any employee   of the employer's insurer or such  collective  bargaining  agent  (while   acting within the scope of his or her employment).