The Rogak Report: 13 Nov 2009 (Part 2) *No Fault - Workers Comp **
WHEN QUESTION OF WORKERS COMP BEING PRIMARY TO NO FAULT COMES UP, SUIT SHOULD BE HELD IN ABEYANCE
Bath Med. Supply, Inc. a/a/o Rodrigo S. Parra v. Harco Natl. Ins. Co. 2009 NY Slip Op 52278(U) Decided on November 5, 2009 Appellate Term, Second Department Edited by Lawrence N. RogakOften, in no-fault claims, a question arises as to whether the claimant was in the course of his employment at the time of the accident and thus, whether workers compensation benefits should be primary to no-fault. That determination is made by the Workers Compensation Board. But what should happen to the no-fault suit in the meantime? District Court, Nassau County, dismissed this suit and referred plaintiff to the Workers Comp Board. The Appellate Term took a different view
"ORDERED that the order is reversed without costs, the complaint is reinstated and plaintiff's motion is remitted to the District Court to be held in abeyance pending a prompt application to the Workers' Compensation Board for a determination of the parties' rights under the Workers' Compensation Law. In the event plaintiff fails to file proof with the District Court of such application within 90 days of the date of the order entered hereon, the District Court shall deny plaintiff's motion and grant summary judgment in favor of defendant dismissing the complaint unless plaintiff shows good cause why the complaint should not be dismissed."
"In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion on the ground that it had timely denied plaintiff's claim based upon the assignor's eligibility for workers' compensation benefits. The District Court dismissed the complaint and referred the matter to the Workers' Compensation Board. This appeal by plaintiff ensued."
"Contrary to plaintiff's contention, the Workers' Compensation Board has the authority to determine whether plaintiff's assignor is entitled to Workers' Compensation benefits (see A.B. Med. Servs., PLLC v American Tr. Ins. Co., 24 Misc 3d 75 [App Term, 9th & 10th Jud Dists 2009]). However, the District Court should not have dismissed the complaint and referred the matter to the Workers' Compensation Board but, rather, should have held plaintiff's motion in abeyance. Accordingly, the order is reversed, the complaint reinstated and plaintiff's motion remitted to the District Court to be held in abeyance pending a prompt application to the Workers' Compensation Board for a determination of the parties' rights under the Workers' Compensation Law."