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A workers’ compensation carrier or self-insured employer must “expressly and unambiguously” preserve its right to any offset related to a third-party settlement, even when there is a lien against recovery, the Court of Appeals said last week in a 6-1 ruling. Matter of Brisson v. County of Onondaga, 11, began when Alan Brisson, a worker with the Onondaga County Department of Transportation, was struck by a car in November 1998 while working on the shoulder of the road. It centers on the fact that Brisson, after receiving workers’ compensation benefits, settled a third-party suit against the driver and owner of the car for $32,959. Onondaga County, N.Y., agreed to the settlement, but allegedly neglected to reserve its rights to offset the settlement against workers’ compensation benefits. Regardless, the county suspended Brisson’s workers’ compensation benefits. A workers’ compensation judge and the Workers’ Compensation Board agreed the county had waived its offset rights by failing to unambiguously reserve its rights. The Appellate Division, 3rd Department, affirmed. On appeal, the county argued it was not required to reserve its right to a future offset because it did not have a lien when Brisson settled his suit. The Court of Appeals left no question that the right to any offset must be clearly preserved, whether there is an existing lien or not. Judge Susan Phillips Read wrote the prevailing opinion. Judge Robert S. Smith dissented. In dissent, Smith agreed, “with some misgivings” that a workers’ compensation carrier or employer consenting to a third-party settlement “must expressly reserve its offset rights or lose them, even where it has no existing lien.” Although he was not sure of statutory authority for that proposition, Smith said he signed on “because the Court establishes a clear, easy-to-follow rule in an area where clarity is much to be desired.” But Smith said the court’s application of that rule in Brisson was misplaced, since “[s]urely the employer’s reservation of its offset rights … were clear as day.” George Wolff of Syracuse appeared for the county. Assistant Solicitor General Jennifer Grace Miller defended the Workers’ Compensation Board. AGE BIAS VERDICT In another civil appeal decided Thursday, the court toppled a verdict in favor of the plaintiffs in an age discrimination case on the grounds that the defendant offered valid reasons for termination other than age discrimination and the plaintiffs could not prove that those reasons were pretextual. Stephenson v. Hotel Employees and Restaurant Employees Union Local of the AFL-CIO, 4, is rooted in an early 1990s federal racketeering probe when the hotel workers union was under threat of a possible government takeover. To avoid a takeover, the union removed Local 100′s elected officers and directed Vincent Sirabella to operate the local. Sirabella fired two business agents, Albert Stephenson, 64, and Leroy Hodge, 55. A jury rejected the union’s claim that Messrs. Stephenson and Hodge were fired not because of their age, but because they were involved in corrupt activities. But the awards of $590,534 to Stephenson and $670,759 to Hodge was overturned by the Appellate Division, 1st Department, in a 4-1 ruling. The Court of Appeals affirmed unanimously in an opinion by Judge George Bundy Smith. Denise M. Dunleavy of Kramer & Dunleavy in Manhattan appeared for the plaintiffs. Former 2nd Department Presiding Justice Milton Mollen, 86, now of Herrick Feinstein in Manhattan, argued for the union.

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