2023 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; and
e. 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).