In Matter of Kirk v. Central Hudson Gas & Elec. Co. , Charles Kirk, an employee of Central Hudson Gus & Electric , was exposed to asbestos and diagnosed with "bilateral pleural asbestosis."
In 1993, he joined a class action lawsuit and settled for $44,868.76. Eight years later, Kirk filed suit when he developed colorectal cancer as a result of the asbestos exposure.
Central Hudson 's workers' compensation carrier wanted to offset its expenses by the amount previously awarded to Kirk. A Workers' Compensation Judge held the funds "could be offset only against the pleural disease claim, not against the colorectal cancer claim."
When the Worker's Compensation Board agreed with that outcome, the carrier appealed to the Appellate Division, Third Department, which was of the opinion the Board 's decision was supported by "substantial evidence." The $44,868.76 awarded in the class action was "explicitly based on claimant's ... bilateral pleural asbestosis" and unrelated to the later developed colorectal cancer. (In other words, Kirk had recovered for a single injury.) Since denial of the carrier's request didn't trigger a "double recovery," the AD3 affirmed.
This Kirk was likely beaming.
To download a copy of the Appellate Division's decision, please use this link: Matter of Kirk v. Central Hudson Gas & Elec. Co.