2023 New York Laws › WKC - Workers' Compensation › Article 9 - Disability Benefits › 227 - Actionable Injuries in Claims for Disability Benefits; Subrogation.

§   227.  Actionable  injuries  in  claims  for  disability  benefits;
  subrogation. 1. If an employee entitled  to  disability  benefits  under
  this  article be disabled by injury caused by the negligence or wrong of
  a third party, such  employee  need  not  elect  whether  to  take  such
  disability  benefits  or  to pursue his remedy against such third party,
  but may take his benefits under this article.  The  carrier  liable  for
  payment  of  disability  benefits  under this article or the chairman in
  case of benefits paid under section two hundred  seven  or  two  hundred
  thirteen  shall  have  a  lien on the proceeds of any recovery from such
  third party, whether by judgment, settlement  or  otherwise,  after  the
  deduction of reasonable and necessary expenditures, including attorneys'
  fees,  incurred  in  effecting such recovery, to the extent of the total
  amount of disability benefits provided by this article and paid, and  to
  such  extent  such  recovery  shall  be  deemed  for the benefit of such
  carrier or the chairman. Should the employee secure a recovery from such
  third party, whether by judgment, settlement or otherwise, such employee
  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 and the lienor. Notice of the commencement of
  such action shall be given within ninety days thereafter to the employer
  or carrier or to the chairman, as the case may be. The foregoing rights,
  limitations,  and  procedures shall also apply to actions and recoveries
  under  the  employers'  liability   act,   and   section   six   hundred
  eighty-eight,  title  forty-six,  United  States  code,  and  under  the
  maritime doctrine of wages, maintenance and cure. Any of  the  foregoing
  providers  of disability benefits which has recovered a lien pursuant to
  the provisions hereof against the recovery of a  person  injured  on  or
  after  December  first,  nineteen  hundred seventy-seven 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 responsibilities 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  represents  first  party benefits as
  defined in article fifty-one of the insurance law.
1-a. Notwithstanding any other provisions of this article the  carrier
  liable  for  payment  of  disability benefits under this article, or the
  chairman in case benefits are paid under section two  hundred  seven  or
  section  two  hundred  thirteen of this chapter 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 disability  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  in  the situation specified in the preceding sentence shall be
  pursuant to the settlement procedures contained in section five thousand
  one hundred five of the insurance law.
2. If such disabled employee has been paid disability  benefits  under
  this article but has failed to commence action against such other within
  six  months  prior  to the expiration of the statute of limitations, the
  carrier or the chairman, as the case may  be,  may  maintain  an  action
  against  such  third  party. If the carrier or the chairman, as the case
  may be, having paid disability benefits to a disabled 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  December  first,
  nineteen  hundred  seventy-seven and before July first, nineteen hundred
  seventy-eight, maintains an action against such third party, who is also
  a "covered person", and recovers, whether  by  judgment,  settlement  or
  otherwise,  it shall advise the disabled 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 disabled employee.
2-a. Notwithstanding any other provisions of this article, the failure
  of  a  "covered  person"  (as  defined in subsection (j) of section five
  thousand one hundred two of  the  insurance  law),  who  has  been  paid
  disability  benefits  under this article for injuries arising out of the
  use or operation of a motor vehicle in this state, to commence an action
  against such other within six months prior  to  the  expiration  of  the
  statute  of  limitations, shall not operate to permit the carrier or the
  chairman to institute an action  against  such  other  third  party  for
  recovery  of  disability benefits paid which were in lieu of first party
  benefits which an insurer would have otherwise  been  obligated  to  pay
  under  article fifty-one of the insurance law unless such third party is
  not a "covered  person".  The  sole  remedy  of  any  of  the  foregoing
  providers  to  recover  the  payments  in the situation 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.  A  compromise  of  any  such cause of action by the employee in an
  amount less than the benefits provided by this  article  shall  be  made
  only  with  the  written  consent of the carrier or the chairman, as the
  case may be.