THIRD DEPT. BROADENS SCOPE OF BURNS APPLICABILITY; NARROWS REQUIREMENT FOR RESERVING OFFSET RIGHTS

Stenson v. NYS Dept of Transp., 96 A.D.3d 1125 (3rd Dept. 2012)

After the claimant sought to have the carrier pay for its share of litigation costs, the Board’s determination that the carrier failed to plainly and unambiguously express its intent to be relieved from payment of its equitable share of litigation expenses relative to its offset right is supported by substantial evidence.  Specifically, the carrier’s letter consenting to the settlement made no reference to that subject.  In affirming the Board, the Court added “it is well settled that a carrier’s equitable share of litigation costs must be apportioned not only upon the benefit received ‘by the recovery of its lien but also [on] the value of . . . future compensation payments that, but for the employee’s efforts, the carrier would have been obligated to make’ during the holiday period.

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