Matter of Hirschbeck v. Office of the Commissioner of Baseball, Major League Baseball ( 2015 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: September 3, 2015 519122
________________________________
In the Matter of MARK
HIRSCHBECK,
Appellant,
v
OFFICE OF THE COMMISSIONER OF
BASEBALL, MAJOR LEAGUE MEMORANDUM AND ORDER
BASEBALL, et al.,
Respondents.
WORKERS' COMPENSATION BOARD,
Respondent.
________________________________
Calendar Date: August 20, 2015
Before: Lahtinen, J.P., McCarthy, Garry and Egan Jr., JJ.
__________
Hinman, Howard & Kattell, LLP, Binghamton (Gary C. Tyler of
counsel), for appellant.
Ryan Roach & Ryan, LLP, Kingston (Sean J. Denvir of
counsel), for Office of the Commissioner of Baseball Major League
Baseball and another, respondents.
Steven M. Licht, Special Funds Conservation Committee,
Albany (Jill B. Singer of counsel), for Special Disability Fund,
respondent.
__________
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Garry, J.
Appeal from a decision of the Workers' Compensation Board,
filed August 16, 2013, which ruled that the employer was entitled
to offset its future compensation to claimant pursuant to
Workers' Compensation Law § 29 (4).
Claimant, a major league baseball umpire, sustained a work-
related injury to his right hip in 2002 and was awarded workers'
compensation benefits. Claimant underwent hip replacement
surgery and, following complications and additional surgeries,
was deemed permanently partially disabled. Claimant commenced a
third-party action alleging medical malpractice and products
liability claims related to his initial hip replacement device.
After that action was settled in 2011 for $3.2 million, the
workers' compensation carrier suspended payments of benefits,
claiming that it had reserved its rights to a future offset from
claimant's settlement proceeds as evidenced in a 2007 agreement.1
A Workers' Compensation Law Judge ruled that the carrier had
clearly reserved its right to future offsets from the settlement.
The Workers' Compensation Board affirmed and this appeal by
claimant ensued.
We affirm. An employer or carrier must "unambiguously and
expressly" reserve its right to offset a claimant's future
compensation benefits with the proceeds of any recovery or
settlement against a third party (Matter of Brisson v County of
Onondaga, 6 NY3d 273, 279 [2006]; accord Matter of Tamara v
Airborne Express, Inc., 100 AD3d 1060, 1061 [2012]). "[W]hether
an employer [or carrier] adequately preserved its right to a
future offset is a factual issue for the Board," and its
determination will not be disturbed if supported by substantial
evidence (Matter of Brisson v County of Onondaga, 6 NY3d at 279).
Here, a 2007 agreement was entered into in connection with the
carrier intervening in the third-party action seeking
1
Pursuant to Workers' Compensation Law § 15 (8), the
carrier was found to be entitled to reimbursement from the
Special Disability Fund for benefits paid beyond the statutory
retention period.
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reimbursement of costs and the workers' compensation related lien
asserted by the carrier. In that document, it was expressly
stated that the employer and its carrier "shall continue to
maintain their statutory right to assert a dollar for dollar
credit up to the net recovery on future benefits" pursuant to
Workers' Compensation Law § 29. We are unpersuaded by claimant's
contention that alleged deficiencies in that document render the
carrier's reservation of future offsets ambiguous. As the
express language in the 2007 agreement notified claimant of the
carrier's intent to seek credit against future awards of
compensation benefits, we find that substantial evidence supports
the Board's decision and it will not be disturbed (see Matter of
Whitcomb v Xerox Corp., 246 AD2d 947, 948 [1998]).
Lahtinen, J.P., McCarthy and Egan Jr., JJ., concur.
ORDERED that the decision is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court