COURT OF APPEALS HOLDS FUTURE MEDICAL BENEFITS TOO SPECULATIVE TO ASSESS FOR PURPOSE OF CALCULATING CARRIER’S EQUITABLE SHARE OF THIRD-PARTY LITIGATION COSTS

Bissell v. Town of Amherst, 18 N.Y.3d 697 (3rd Dept. 2012)

In claimant’s action per §29(1) to extinguish the carrier’s $219,760 lien against the third-party recovery and demand for $1,399,734 in “fresh money” representing the carrier’s share of the cost of recovery of the future medical expenses, he contended that the amount of future medical expenses cannot be deemed speculative since the benefit to the carrier can be “quantified by actuarial or other reliable means” since awarded by the jury.  Therefore, the present value of the future medical expenses should be included as part of the Kelly calculation (See Kelly v. State Ins. Fund, 60 N.Y.2d 131 [1983]), entitling him to an immediate payment of the attorneys’ fees expended in obtaining that portion of the award.

The Court rejected this argument and reiterated that there is a distinction between a non-speculative future medical expenses award made by a jury and the benefit that the carrier receives under the WCL as a by-product of that award.  Whether the claimant is entitled to medical treatment pursuant to WCL is a determination that must be made by the Board, and such determination is not dependent upon the jury’s verdict in the third-party action.

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