Opinion
April 27, 1971
Appeal by a self-insured employer from a decision of the Workmen's Compensation Board on the grounds that the automobile accident in which the claimant was injured did not arise out of and in the course of employment, that a third-party action brought by the claimant was settled or compromised in contravention of then subdivision 5 of section 29 Work. Comp. of the Workmen's Compensation Law and that the net recovery to be credited to appellant from the proceeds of the claimant's third-party recovery was not properly computed. Claimant, a service engineer who traveled throughout the country, was an outside employee away from home in the service of his employer at the time of the accident, and we cannot say on the instant record that the board could not find that his activities on the evening of the accident were reasonable and thus that the accident occurred within the scope of his employment (e.g. Matter of Matthews v. Marine Transp. Lines, 28 A.D.2d 195, 197, mot. for lv. to app. den. 21 N.Y.2d 642; Matter of Schreiber v. Revlon Prods. Corp., 5 A.D.2d 207, 208; cf. Matter of Pasquel v. Coverly, 4 N.Y.2d 28). Nor do we find any merit here in appellant's contention that the third-party settlement effected was a compromise in contravention of then subdivision 5 of section 29 Work. Comp. of the Workmen's Compensation Law and thus a waiver of any right to compensation benefits (cf. Matter of Clark v. Oakes Burger Co., 16 A.D.2d 490, 491-492). Claimant's attorney in the negligence action testified that both before and after the trial, which resulted in a jury verdict of no cause of action which the Trial Judge set aside, he rejected offers to settle the action for $10,000, the policy limit of the defendant's liability insurance policy, because the appellant would not consent to settlement. And while thereafter claimant successfully moved to amend his ad damnum clause to $10,000 and the trial court granted judgment in his favor for that amount, the attorneys who represented the parties in the negligence action testified at the compensation hearing to the effect that the motion for judgment in favor of the claimant was left entirely to the Trial Judge and that no agreement was made with the Judge and the Judge testified that there was no advance agreement as to claimant's motion and essentially that he exercised his "free judgment" in disposing of the motions. "The question of whether or not the judgment represents an independent evaluation by the court or whether it was the product of a settlement or agreement between the parties is a question of fact for the board ( Matter of Minnitti v. Fleet Messenger Serv.,
4 A.D.2d 916)" and since here "that determination is supported by substantial evidence it may not be disturbed" ( Matter of Kelly v. Chelsea Chevrolet Corp., 29 A.D.2d 803, mot. for lv. to app. den. 22 N.Y.2d 642). Finally, while appellant is correct that the amount of net recovery was apparently erroneously computed (Workmen's Compensation Law, § 29, subd. 4), the result reached is nevertheless still correct. The record indicates that claimant's legal fees amounted to $3,333, his medical expenses amounted to $3,701.81, and his judgment, excluding property damages which is not here involved, was satisfied in the amount of $10,000. It thus appears that the amount "actually recovered" by claimant was $2,965.19. The board found that the claimant was entitled to disability benefits in the amount of $3,036. Based on these figures, claimant is entitled to deficiency compensation in the amount of $70.81 ($3,036, amount of statutory compensation, less $2,965.19, the amount "actually collected"). Since the Referee found the award to be "less payments made", there is no possibility of double recovery by the claimant, and the amount of deficiency compensation utilizing the board's method is the same $70.81. Decision affirmed, with costs to the Workmen's Compensation Board. Herlihy, P.J., Reynolds, Greenblott, Cooke and Simons, JJ., concur.