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September 18, 2017

Reimbursement for wages paid to workers' compensation claimant's employer for wages paid during the employee's period of disability


Reimbursement for wages paid to workers' compensation claimant's employer for wages paid during the employee's period of disability
Collins v Montgomery County Sheriff's Dept., 2017 NY Slip Op 06487, Appellate Division, Third Department

A Montgomery County deputy sheriff [Claimant] sustained a work-related injury. His claim for workers' compensation benefits was ultimately established and he was awarded disability benefits.

The Montgomery County Sheriff Department [Department] a "self-insured workers' compensation employer" paid Claimant his full weekly wages for the period November 29, 2011 through May 30, 2012 and filed a timely reimbursement request with the Workers' Compensation Board. The Department and Claimant then entered into a stipulation establishing that Claimant had sustained a 21% schedule loss of use of his right leg, payable from November 28, 2011 to February 16, 2012 at the temporary total disability rate, with the balance payable at the permanent partial disability rate and the Department was "to take credit for all prior payments."

Claimant then requested a hearing to address whether, pursuant to the terms of the parties' stipulation, the Department was entitled to reimbursement out of his schedule award for the full wages previously paid or whether a late payment penalty should be imposed against the Department for an underpayment of compensation.

A Workers' Compensation Law Judge [WCLJ] determined that the language of the stipulation permitted the Department to obtain reimbursement for the full wages paid to Claimant during compensable lost time and that there was no underpayment. The WCLJ also denied Claimant's request for imposition of a penalty. The Workers' Compensation Board affirmed the WCLJ's ruling and Claimant appeal the Board's decision.

The Appellate Division affirmed the Board's decision, noting that Workers' Compensation Law §25 (4)(a) provides that, "[i]f the employer has made advance payments of compensation, or has made payments to an employee in like manner as wages during any period of disability, [the employer] shall be entitled to be reimbursed out of an unpaid instal[l]ment or instal[l]ments of compensation due, provided [the employer's] claim for reimbursement is filed before [an] award of compensation is made."

In addition, said the court, "it is well settled that, where a claimant receives a schedule loss of use award, the employer is entitled to full reimbursement of the payments made during the period of disability."

As to Claimant's argument that the Board had "departed from prior precedent without explanation.," the Appellate Division explained that:

1. The Board was not required to explain the different holdings in the various cases cited by Claimant;

2. Here, in contrast to the Board holdings in prior cases cited by Claimant, "the parties' stipulation specifically indicated that the [Department] was 'to take credit for all prior payments' [emphasis by the Appellate Division] — without any distinction drawn between wages, awards or compensation;"

3. At the Workers' Compensation Board hearing before the WCLJ at which the stipulation was executed, Claimant indicated that he was aware that the Department was entitled to take credit for any prior indemnity payments that he had received; and

4. The WCLJ order directed the Department to "take credit for prior payments."

Although, said the Appellate Division, "[a] statutory or regulatory right may generally be waived by a stipulation or by conduct evincing an intent to forgo that right," in this instance the Board's reading of the parties' stipulation that the Department did not intend to waive its right to reimbursement is supported by substantial evidence. Accordingly, the court declined to "disturbed" the Board's determination and affirmed its decision.

The decision is posted on the Internet at:

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