N.Y. Workers' Compensation Law § 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).