The New York Court of Appeals’ decision today in Matter of Alan J. Brisson v.  County of Onondaga provides a clear warning for self-insured employers and workers’ compensation carriers.   The Court held that self-insured employers or workers’ compensation carriers must preserve their rights to any offset expressly and unambiguously when consenting to settlement of a third-party action, regardless of whether there is an existing lien against the claimant’s recovery.  When you juxtapose Judge Read’s decision for the Majority with Judge R. Smith’s dissenting opinion, the best advice for following this rule is to make the letter preserving the right for an offset as clear as possible, with no room for ambiguities.

What makes the necessity to preserve the right for the offset even more important is the Court’s observance of the standard of review appellate courts give as to whether the employer or carrier unambiguously preserved the right.   The Court observed that whether an employer adequately preserved its right to a future offset is a factual issue for the Workers’ Compensation Board, and that means the support of substantial evidence is all that is needed for the court’s to determine the Board’s determination is conclusive.