Cruz v. City of N.Y. Dep't of Children's Servs.

• Decision Date: 31 December 2014
• Docket Number: 518241
• Parties: In the Matter of the Claim of Tiffany CRUZ, Respondent, v. CITY OF NEW YORK DEPARTMENT OF CHILDREN'S SERVICES, Appellant. Workers' Compensation Board, Respondent.
• Court: New York Supreme Court — Appellate Division

123 A.D.3d 1390
999 N.Y.S.2d 603
2014 N.Y. Slip Op. 09074

In the Matter of the Claim of Tiffany CRUZ, Respondent
v.
CITY OF NEW YORK DEPARTMENT OF CHILDREN'S SERVICES, Appellant.

Workers' Compensation Board, Respondent.

518241

Supreme Court, Appellate Division, Third Department, New York.

Dec. 31, 2014.

999 N.Y.S.2d 603

Michael A. Cardozo, Corporation Counsel, New York City (Meghan McKenna of counsel), for appellant.

Polsky, Shouldice & Rosen, P.C., Rockville Centre (Patrick M. Conroy of counsel), for Tiffany Cruz, respondent.

Eric T. Schneiderman, Attorney General, New York City (Iris A. Steel of counsel), for Workers' Compensation Board, respondent.

Before: PETERS, P.J., STEIN, GARRY, EGAN JR. and DEVINE, JJ.

Opinion

PETERS, P.J.

123 A.D.3d 1390

Appeal from a decision of the Workers' Compensation Board, filed April 1, 2013, which ruled that the self-insured employer was not entitled to take an offset under Workers' Compensation Law § 29 against the schedule loss of use award.

Claimant was involved in an automobile accident while she was working for the self-insured employer. She filed an application for workers' compensation benefits based on injuries sustained in the accident

999 N.Y.S.2d 604

and was out of work from October 23, 2008 until December 28, 2008. A Workers' Compensation Law Judge (hereinafter WCLJ) established her claim for work-related injuries to her right hip, right arm, neck and back, and awarded her benefits of $550 per week during the time that she was out of work. Claimant subsequently settled her third-party action with the employer's consent. Thereafter, the parties stipulated that claimant had a 15% schedule loss of use of her right arm and a WCLJ awarded her benefits for 46.8 weeks in accordance with Workers' Compensation Law § 15(3)(a). The WCLJ directed the employer to pay $550 per week for the 9.4 weeks immediately following claimant's injury, listed as temporary total disability, and $550 per week for the next 37.4 weeks, listed as permanent partial disability. In computing the net schedule loss of use award paid to claimant, the employer deducted, in addition to payments already made and counsel fees, a sum of $3,310 representing an offset from the third-party settlement. Claimant objected to the computation on the ground that the employer was not entitled to take an offset from the third-party recovery against the schedule loss of use award. The WCLJ agreed and the Workers' Compensation Board upheld this decision. The employer appeals.

123 A.D.3d 1391

We affirm. Workers' Compensation Law § 29 provides that a carrier or self-insured employer that pays workers' compensation benefits has the right to offset future payments of compensation against proceeds recovered by a claimant in a third-party action as long as such payments do not constitute first party benefits made to reimburse a claimant for basic economic loss or payments made in lieu of first party benefits under the No–Fault Law (see Workers' Compensation Law § 29[1], [1–a], [4] ; Insurance Law §§ 5102 [a], [b];...