This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
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No. 177
Ace Fire Underwriters Insurance
Company, &c.,
            Appellant,
        v.
Special Funds Conservation
Committee,
            Respondent.




          Lisa Levine, for appellant.
          Jill B. Singer, for respondent.




MEMORANDUM:
          The order of the Appellate Division should be reversed,
with costs, and the matter remitted to Supreme Court for further
proceedings in accordance with this memorandum.
          A Coca-Cola Bottling Company employee sustained a work-
related injury in March 2007 and was awarded workers'

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compensation benefits.   The benefits are payable by petitioner
Ace Fire Underwriters Insurance Co. (Ace Fire), Coca-Cola's
workers' compensation insurance carrier.
          The employee was classified as having a permanent
partial disability and the Workers' Compensation Board held that
his claim was subject to Workers' Compensation Law § 15 (8).
Under that provision, when an employee with a preexisting
permanent physical injury sustains a compensable work-related
injury that leads to a permanent disability significantly greater
than that which would have resulted from the subsequent injury
alone, the Special Disability Fund is responsible for reimbursing
the workers' compensation carrier for all medical and
compensation benefits payable after the first 260 weeks of
disability (see Workers' Compensation Law § 15 [8] [d]).    Section
15 (8) was intended to encourage employers to hire disabled
employees (see Workers' Compensation Law § 15 [8] [a]).
          Based on section 15 (8), the injured employee's
workers' compensation benefits in this case were, to the extent
payable after the first 260 weeks of disability, reimbursable by
the Special Disability Fund.   In addition to receiving workers'
compensation benefits, the injured employee commenced a third-
party personal injury action in Supreme Court.   As relevant here,
under Workers' Compensation Law § 29 (1), if the injured employee
elects to bring a third-party action, "the person, association,
corporation or insurance carrier" that is liable for workers'


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compensation and medical expenses is entitled to "a lien on the
proceeds of any recovery" in the third-party action, less
reasonable and necessary expenses.     The "recovery shall be deemed
for the benefit of such . . . person, association, corporation or
carrier," to the extent of the amount payable by the lienor
(Workers' Compensation Law § 29 [1]).
          The same statute further provides that, when the third-
party settlement is in an amount less than the benefits payable
to the injured employee, it "shall be made only . . . with the
written approval of the person, association, corporation, or
insurance carrier liable to pay the same" (Workers' Compensation
Law § 29 [5]).   However, such written approval "need not be
obtained if the employee . . . obtain[s] a compromise order from
a justice of the court in which the third-party action was
pending" (Workers' Compensation Law § 29 [5]).    In other words,
although the employee must obtain the written approval of the
workers' compensation carrier prior to entering a settlement, the
failure to do so can be cured by the court ordering the carrier's
consent to the personal injury settlement, nunc pro tunc.
Notably, neither section 29 (5) nor section 15 (8) specifically
requires the carrier to obtain the Special Disability Fund's
approval prior to agreeing to a third-party settlement.
          Here, as required by section 29, the injured employee
sought and obtained Ace Fire's approval prior to entering the
settlement of the third-party action.    Ace Fire, however, did not


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seek the Special Disability Fund's written approval prior to
settlement.   When Ace Fire sought the Special Disability Fund's
retroactive consent, the Fund refused, asserting that Ace Fire
had forfeited its right to reimbursement.    Ace Fire then
commenced this proceeding asking Supreme Court to compel the
Special Disability Fund's consent nunc pro tunc under Workers'
Compensation Law § 29 (5).
          We have repeatedly recognized "that a statute . . .
must be construed as a whole and that its various sections must
be considered together and with reference to each other" (Matter
of Shannon, 25 NY3d 345, 351 [2015] [quotation marks and
citations omitted]).    The language in section 29 (1) establishing
what entities may be deemed lienors is essentially identical to
the language in section 29 (5) referring to the entities whose
consent to settlement is required and, if not obtained, can be
compelled upon application to the court -- i.e., the "person,
association, corporation, or insurance carrier liable to pay"
compensation benefits.    Here, the parties do not dispute that the
consent of the Special Disability Fund to settlement of the
employee's third party action was required.    Thus, assuming, for
purposes of this appeal, that the Special Disability Fund is a
lienor whose consent to settlement is required under Workers'
Compensation Law § 29 (1), we conclude that the carrier may seek
to obtain the Fund's consent from Supreme Court nunc pro tunc
under section 29 (5).    There is no principled basis for


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concluding that the Special Disability Fund's consent is required
as a lienor under one portion of the statute, but that the
failure to obtain it cannot be cured, as it can for other
lienors, under the same statute.
*   *   *   *   *   *   *   *    *      *   *   *   *   *   *     *   *
Order reversed, with costs, and matter remitted to Supreme Court,
New York County, for further proceedings in accordance with the
memorandum herein. Chief Judge DiFiore and Judges Pigott,
Rivera, Abdus-Salaam, Stein, Fahey and Garcia concur.

Decided November 22, 2016




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