Marshall v. Savannah Sausage Corp.

• Decision Date: 29 April 1993
• Citation: 596 N.Y.S.2d 936,192 A.D.2d 954
• Parties: In the Matter of the Claim of Joanne MARSHALL, Appellant, v. SAVANNAH SAUSAGE CORPORATION et al., Respondents. Workers' Compensation Board, Respondent. (And Another Related Claim.)
• Court: New York Supreme Court — Appellate Division

Page 936

596 N.Y.S.2d 936

192 A.D.2d 954

In the Matter of the Claim of Joanne MARSHALL, Appellant, v. SAVANNAH SAUSAGE CORPORATION et al., Respondents Workers' Compensation Board, Respondent (And Another Related Claim.)

Supreme Court, Appellate Division Third Department.

April 29, 1993.

Jonathan Hirschhorn (David Hirschhorn, Las Vegas, NV, of counsel), Plainview, for appellant.

Jones, Jones, Gluck & Larkin (Joel M. Gluck, of counsel), New York City, for Savannah Sausage Corp. and Home Ins. Co., respondents.

Before MIKOLL, J.P., and YESAWICH, MERCURE, CREW and HARVEY, JJ.

MIKOLL, Justice Presiding.

Appeal from a decision of the Workers' Compensation Board, filed November 2, 1989, as amended by decision filed January 11, 1991, which ruled, inter alia, that claimant's application for death benefits was not timely filed.

The twofold issue before us is whether the Workers' Compensation Board properly disallowed claimant's death claim as untimely made and whether claimant's attorney was properly denied counsel fees relating to an accident of September 5, 1977 on the ground that compensation benefits did not exceed a third-party net recovery.

James Marshall, a marketing consultant of Savannah Sausage Corporation, sustained serious injuries in a motor vehicle accident on September 5, 1977. He filed for workers' compensation benefits in May 1978. Employment was controverted by Savannah. Marshall's attorney requested a closing of the Board file during the pendency of a third-party action brought against the other vehicle involved in the accident, which request was granted. Thereafter, Marshall's liability action was settled for $100,000 without the participation or consent of Home Insurance Company, which was both Savannah's no-fault insurer and workers' compensation carrier. The settlement netted Marshall $65,888. To resolve the issue of lack of consent by Home Insurance to the settlement, Marshall sought a nunc pro tunc order compelling consent to the third-party settlement which was granted by Supreme Court and affirmed on appeal by the First Department on November 13, 1983.

The Board scheduled testimony on the threshold issue of accident in the disability case involving the injury of September 5, 1977. At the hearing it was noted that Marshall had died. During the hearing no claim was made that Marshall's death was related to the injuries caused by the September 5, 1977 accident. Claimant, who was Marshall's widow, was directed to produce a marriage and death certificate by the Workers' Compensation Law Judge (hereinafter WCLJ). There then followed a second hearing in which the Board affirmed the nunc pro tunc order and directed production of medical evidence to support the disability claim. On February 6, 1984 claimant filed a notice of death claim. Home Insurance controverted the claim, raising issues of untimely filing and lack of evidence of compensable death. At a hearing on April 4, 1984, the WCLJ established accident, notice and causal relationship for quadriplegia resulting from the physical injuries sustained by Marshall on September 5, 1977; the WCLJ awarded benefits from the accident date to the date of Marshall's death. The sum found due was $27,800 but the WCLJ held that no deficiency compensation was due given the recovery in the personal injury action.

By decision dated June 12, 1984, the WCLJ permitted Home Insurance to take credit for $27,800 for compensation benefits from the net recovery to Marshall of $65,888 in the third-party action. It was held that there was no money payable to Marshall or his survivors and no fee due to his attorney in that the workers' compensation benefits would not exceed the recovery made by Marshall in the third-party action. In a decision dated October 25, 1984...