KATZMANN, Circuit Judge: George Mooney, plaintiff-appellant, appeals from the amended judgment of the United States District Courtfor the Southern District of New York (Lewis A. Kaplan, Judge), granting summary judgment in favor of theCity of New York (the “City”), defendant-appellee. The district court held that an award of workers’compensation benefits constituted a waiver of a Jones Act claim. For the reasons that follow, we vacate theamended judgment of the district court and remand with instructions for further proceedings. I. BACKGROUND The essential facts are not in dispute except where noted. George Mooney was an employee of theDepartment of Transportation of the City of New York (the “City”) at all times relevant to this action. The Cityis a self-insured employer. In May 1996, while assigned to work aboard a Staten Island ferry, Mooneyslipped and fell on a set of stairs in the engine room. In June 1996, with the assistance of counsel, Mooneyfiled a claim under the New York State Workers’ Compensation Law for alleged injuries to his right leg andback. On June 27, 1996, the City advised the New York State Workmen’s Compensation Board (the”Board”), which is established under N.Y. Work. Comp. Law � 142(1) “to hear and determine all claims forcompensation or benefits” under that law, that the City would not contest Mooney’s right to compensation,provided Mooney submitted prima facie medical evidence and a medical consultant’s report. Mooney didso. Mooney began receiving compensation benefits in November 1996 pending a hearing before the Board,but payments were suspended in December 1996 due to a lack of updated medical evidence. In January1997, the first hearing involving Mooney’s workers’ compensation claim was held before a workers’compensation law judge. The judge received evidence regarding Mooney’s accident, notice to hisemployer, his injuries for the period from the accident until January 1997, and the causal connectionbetween the accident and the injuries. The judge determined that Mooney was entitled to workers’compensation benefits from May 17, 1996 to January 15, 1997, less two days he worked, at the rate of$400 per week. He also directed the City to continue payments beyond January 15, 1997 pending furtherdetermination, and the City complied. In May 1997, after a hearing, the Board granted a second award at the same rate to Mooney, covering theperiod from January 15, 1997 to February 28, 1997, the day Mooney returned to work, and authorizedorthopedic consultation. By notice dated March 28, 1997, the City’s Workers’ Compensation Division, LawDepartment (“Law Department”), informed Mooney that he had been overpaid $1,680 for the period fromFebruary 28, 1997 to March 30, 1997. The same notice indicated that Mooney had received a total awardof $16,400 for a temporary disability, and that “compensation for disability [had] been paid in full” becauseMooney had returned to work. A second notice from the Law Department to Mooney, dated May 30, 1997,reiterated that he had been overpaid for the period from February 28 to March 2, 1997, and that he hadbeen paid in full. A third hearing held in December 1997 resulted in no further award, only authorization for a bone scan ofMooney’s left leg. The fourth hearing was held in April 1998, when Mooney for the first time alleged injury tohis right knee. No additional award was granted but the case was continued to allow Mooney to producemedical evidence of his alleged right knee injury. At the fifth and final hearing in October 1998, it wasdetermined that Mooney had suffered a “12 1/2 % SLU [schedule loss of use]” of his left leg. No findingwas made regarding the right leg. Mooney did not appeal the closure of his case. Mooney was represented by counsel at each of the five hearings, although the parties dispute whether hisattorney was knowledgeable about federal maritime law and whether the attorney had advised Mooney ofhis federal maritime rights. In January 1999, represented by a different attorney, Mooney commenced the present action, assertingcauses of action for negligence under the Jones Act and for unseaworthiness under general maritime law,as well as for a seaman’s traditional remedies of maintenance and cure.
[FOOTNOTE 1] After discovery, the City movedfor summary judgment on the ground that Mooney’s acceptance of workers’ compensation over anine-month period, while represented by counsel, together with his failure to appeal timely the closure of hiscase, constituted an implied waiver of his federal maritime rights.
[FOOTNOTE 2] A. The district court’s decision By Order dated August 2, 1999, the district court granted the City’s motion. On Mooney’s motion forreconsideration, the court again held in favor of the City and entered judgment accordingly. The districtcourt relied primarily on Heagney v. Brooklyn Eastern Dist. Terminal, 190 F.2d 976 (2d Cir. 1951), whichdealt with the analogous question of whether acceptance of workers’ compensation benefits constituted awaiver of remedies otherwise available under the Federal Employers’ Liability Act, 45 U.S.C. � 51 et seq.(“FELA”). The court: underst[ood] Heagney as adopting the view, essentially policy-based, that the active pursuit ofa worker’s compensation claim in which the claimant is represented by counsel waives anymaritime tort claim without regard to the subjective understanding and intention of the plaintiff. Mooney v. City of New York, No. 99 Civ. 0005, slip op. at 3 (S.D.N.Y. Aug. 25, 1999). The court found the facts in the present case to be “at least as strong for the defendant as those inHeagney.” Id. at 2. In particular, the district court found that: [w]hile the City did not controvert compensation, payments, after initially commencing wereterminated in December 1996. The Workers’ Compensation Board subsequently held fivehearings . . . on issues including the accident, the causal relation between the claimed injuriesand the accident, the extent and permanency of the injury, the need for further treatment, and therate of compensation. Plaintiff was represented throughout by counsel. He obtained resumptionof compensation payments after the initial termination and a further series of awards. He didnot institute this action until approximately 26 months after first receiving compensationpayments, which ultimately totaled over $16,000. Id. Based on these facts, the district court granted summary judgment for the City. B. Reyes v. Delta Dallas Alpha Corporation In December 1999, after the district court’s ruling, this Court decided Reyes v. Delta Dallas Alpha Corp.,199 F.3d 626 (2d Cir. 1999). The plaintiff in that case, while receiving ongoing voluntary workers’compensation from his employer, notified his employer that he had asserted a claim, presumably with theBoard, under federal maritime law and intended to treat the compensation payments as a “set-off.” See id.at 628. The record did not indicate that either the employer or the Board acted on this claim before theemployee filed a subsequent Jones Act suit in federal court. See id. On motion by the employer, the districtcourt granted summary judgment dismissing the complaint on the ground that the plaintiff’s prosecution of aclaim for state workers’ compensation benefits amounted to a waiver of his Jones Act rights. See id. On appeal, this Court vacated the district court’s judgment, noting that: In Southwest Marine, Inc. v. Gizoni, 502 U.S. 81, 91 (1991), the Supreme Court held that thereceipt of voluntary worker’s compensation payments under a federal worker’s compensationstatute does not bar a subsequent action under the Jones Act, unless the claimant received aformal award from the compensation board settling his claims in their entirety. Id. (emphasis added). Therefore, the Court held that “federal law does not treat Reyes’s mere receipt ofinterim compensation payments as a waiver of his Jones Act claim.” Id. at 629. Furthermore, the Court held that � 113 of the New York Workers’ Compensation Law did not bar themaritime action. Section 113 provides, in relevant part, that: awards according to the provisions of this chapter may be made by the board in respect ofinjuries subject to the admiralty or other federal laws in case the claimant, the employer and theinsurance carrier waive their admiralty . . . rights and remedies . . . . N.Y. Work. Comp. Law � 113 (McKinney 2000). The Court concluded that Reyes’s conduct would not beconsidered as a waiver under New York law because he “never ‘evince[d] an intention to waive redressunder the Jones Act.’” Reyes, 199 F.3d at 629 (alteration in original) (quoting Dacus v. Spin-Nes Realty &Constr. Co., 22 N.Y.2d 427, 430 (1968)). The Court expressly rejected the employer’s reliance on Heagney, stating that it was “supersededauthority” insofar as it predated Gizoni and the New York Court of Appeals’ interpretation of � 113. Reyes,199 F.3d at 629. Because the district court’s decision in the present case rested heavily on Heagney, wevacate and remand for the court to reconsider the City’s summary judgment motion in light of Reyes andthis opinion. II. DISCUSSION The parties in this case dispute whether Mooney had received a formal award from the Board that bars thepresent action. The City seeks merely to equate a formal award with a final decision of the Board. It pointsout that Mooney received notice that his case had been closed, that the $16,400 awarded to himrepresented payment in full for his disability, and that the decision became final and conclusive whenMooney failed to file a timely appeal. Mooney, on the other hand, contends that only the receipt of a lumpsum award above and beyond his workers’ compensation entitlement should count as a waiver of hisfederal claims. We address in this opinion the meaning of “formal award,” referred to in Reyes, and the circumstancesunder which the receipt of a formal award constitutes an implied waiver of a Jones Act or general maritimelaw claim as a matter of federal law. We reject Mooney’s definition of formal award and conclude that theCity’s definition is insufficient. A. Waiver under federal law None of the authorities cited by the Reyes court or by the Supreme Court in Gizoni defined a formal award.Nor does this term appear anywhere in the New York Workers’ Compensation Law. However, the statuteprovides other guidance. Under the statute, with limited exceptions not applicable here,
[FOOTNOTE 3] only the Board isauthorized to make compensation awards: The board shall have full power and authority to determine all questions in relation to thepayment of claims . . . and upon application of either party, shall order a hearing, and withinthirty days after a claim for compensation is submitted . . . , or such hearing closed, shall makeor deny an award, determining such claim for compensation, and file the same in the office ofthe chair. N.Y. Work. Comp. Law � 20(1). Section 142, entitled “General powers and duties of the workmen’scompensation board,” provides that the Board is empowered, among other things, to hear and determineall claims for compensation or benefits and to modify or rescind awards. See id. � 142(1). The statute alsouses the term “award” interchangeably with the term “decision”. See id. � 23 (“An award or decision of theboard shall be final and conclusive upon all questions within its jurisdiction . . . .”). An award by the Board iscontrasted with situations where the employer or insurer pays compensation to the claimant directly,”without waiting for an award by the board,” because no controversy exists between them. Id. � 25(1); seealso 9 ARTHUR LARSON AND LEX K. LARSON, WORKERS’ COMPENSATION LAW � 90.51(a)-(c)(1999) (noting that compensation may be given without the employee ever having filed a claim, upon thefiling of a claim but without a Board award, or pursuant to an award); GRANT GILMORE AND CHARLES L.BLACK, JR., LAW OF ADMIRALTY 435 (2d ed. 1975) (same). We therefore believe that a “formal award” is a written decision issued by the Board and filed with theoffice of the Chair of the Board. A decision or award is issued by the Board when it is made by “a memberor panel of the board or by a Workers’ Compensation Law Judge.” N.Y. Work. Comp. Law App. �300.1(a)(1). Moreover, an award may be formal even if it was made without the benefit of an evidentiaryhearing because the Workers’ Compensation Law does not mandate a hearing before the Board issuesan award. In addition, the award must become final and conclusive, and not subject to further modification,either because the time for administrative and judicial appeals has expired, or because the award hasbeen affirmed on appeal. See id. � 23. A commonsense application of this definition is that a formal awardmay provide for a lump sum payment or a series of payments. We reject Mooney’s argument, based on hismisplaced reliance on a footnote in Reyes, that only a lump sum payment exceeding his workers’compensation entitlement may be deemed a formal award precluding the Jones Act suit. See Reyes, 199F.3d at 629 n.1. That decision merely explained that a petition to the Board for a lump sum payment wasinsufficient to trigger a waiver because, under Gizoni, only the receipt of payments constitutes a waiver.See id. Reyes did not suggest, much less hold, that only a lump sum payment could be deemed a waiver. We emphasize that a complainant’s receipt of a formal award constitutes a waiver of his or her federalmaritime claims only if the formal award “settl[ed the complainant's] claims in their entirety.” Id. at 628. Thisrequirement is simply an application of the well-established principles of waiver, which we do not interpretReyes to have altered. We have held, in other situations, that a waiver need not be express, but may beinferred from the conduct of the parties. See Tray-Wrap, Inc. v. Six L’s Packing Co., 984 F.2d 65, 68 (2dCir. 1993); NLRB v. New York Tel. Co., 930 F.2d 1009, 1011 (2d Cir. 1991). “[T]he conduct said toconstitute a waiver must be clear and unequivocal, as waivers are never to be lightly inferred.” Tray-Wrap,984 F.2d at 68; see Banff, Ltd. v. Colberts, Inc., 996 F.2d 33, 36 (2d Cir. 1993). We will infer a waiver onlywhere “the parties were aware of their rights and made the conscious choice, for whatever reason, towaive them.” New York Tel., 930 F.2d at 1011. Moreover, the party asserting an implied waiver as a matterof law carries the burden of proving that these requirements have been met. See id. (Party asserting waiver”bears the weighty burden of establishing that a ‘clear and unmistakable’ waiver has occurred.” (quotingMetropolitan Edison Co. v. NLRB, 460 U.S. 693, 708 (1983))); cf. United States v. Omdahl, 104 F.3d1143, 1146 (9th Cir. 1997) (party asserting the affirmative defense of estoppel has burden of proof). These fundamental principles are equally applicable to the workers’ compensation context. Thus, where theemployer (or insurer) establishes that the complainant has made a claim to the Board for maritimedamages, the Board has issued a formal award purporting to settle all of the complainant’s claims, and thecomplainant has failed to appeal, the dual requirements of knowledge and subjective intent are satisfied. Inthese circumstances, the claimant’s receipt of a formal award amounts to a waiver of his or her maritimeremedies as a matter of federal law. On the other hand, a formal award, even though final, would not bar a federal maritime action if it does notresolve all of the claims that the injured party presented to the Board, since such an award would not settlethe injured party’s claims in their entirety. Acceptance of a formal award also would not waive a federalmaritime action commenced before the award became final, since in that case the complainant hasindicated an intent to seek redress in a different forum before the award became final. Furthermore, aformal award cannot be said to extinguish a claim that was never presented to the Board and for which thestatute of limitations has not yet expired. To summarize, a formal award is a written decision issued with or without an evidentiary hearing, by amember or panel of the Board or by a workers’ compensation law judge, and filed with the office of theChair of the Board. Acceptance of a formal award constitutes an implied waiver of a complainant’smaritime claims as a matter of federal law where those claims were presented to and resolved by theBoard, and the Board’s award became final and conclusive pursuant to � 23 of the New York Workers’Compensation Law before a maritime action is filed. On remand, therefore, the district court shouldconsider: (1) whether Mooney had filed a claim with the Board for maritime damages in addition toworker’s compensation; (2) whether the Board had issued a formal award settling all of Mooney’s claimsthat were pending prior to the commencement of this case;
[FOOTNOTE 4] and (3) whether the formal award, if issued,became final and conclusive on the parties before Mooney commenced the present action. The districtcourt is free, of course, to develop additional facts. B. Waiver under state law The district court should also consider, on remand, whether Mooney’s conduct amounted to a waiver of hismaritime claims under � 113 of the New York Workers’ Compensation Law. This is a fact-specific inquirywhich the district court should conduct and resolve in the first instance. To assist that inquiry, we offer onepoint of clarification. In Reyes, this Court noted preliminarily that if the actions of the employee in that case were deemed awaiver under New York law, “we would be required to consider whether the state statute as appliedconflicts with important federal regulatory interests.” Reyes, 199 F.3d at 629. We believe that SouthBuffalo Ry. Co. v. Ahern, 344 U.S. 367 (1953), provides guidance in resolving this question. Ahern, aninterstate railroad employee, was injured on the job and was awarded weekly compensation by the Board.See id. at 368. He later died of his injuries. See id. at 369. At a subsequent hearing to determine a finaldisability award, the railroad for the first time argued that the Board lacked jurisdiction over the workers’compensation claim because the deceased was covered under FELA, which allegedly deprived the Boardof jurisdiction. See id. The Board rejected the argument and the New York Court of Appeals affirmed,invoking � 113 and holding that Ahern had waived his FELA rights by accepting workers’ compensation.See id. On appeal to the United States Supreme Court, the railroad argued that the state high court’s interpretationof � 113 “unconstitutionally authorize[d] the Workmen’s Compensation Board to invade a field foreclosedby governing federal legislation.” Id. at 370-71. The Supreme Court disagreed, finding that the New YorkCourt of Appeals successfully avoided a federal-state collision by interpreting � 113 as “a mere legislativeauthorization, permitting the Board to effectuate private agreements for compromising a federalcontroversy by resort to an impartial local umpire — that is all that section 113 of the Workmen’sCompensation Law purports to accomplish. The difference between coercion and permission is decisive.”Id. at 372 (emphasis in original) (internal quotation marks and footnote omitted). If, as a permissivelegislative device, � 113 would validly preclude an FELA action, we see no principled reason why it maynot also bar a Jones Act or general maritime law claim. Therefore, if, on remand, the district court finds thatMooney’s conduct would be an implied waiver under New York law, then the court may conclude that � 113precludes the present action. We stress, however, that we express no opinion on the merits of the City’swaiver defense. CONCLUSION For the reasons explained above, we vacate the amended judgment of the district court and remand forfurther proceedings consistent with this opinion.
[FOOTNOTE 1] :::FOOTNOTES:::
FN1 Maintenance includes sustenance and a berth while aboard ship and payment for the cost of board and lodging while ashore.Cure refers to proper care of the injured seaman. See MARTIN J. NORRIS, THE LAW OF MARITIME PERSONAL INJURIES29-30 (4th ed. 1990). Mooney does not appeal the dismissal of his claim for maintenance and cure.
FN2 The City did not plead waiver as an affirmative defense in its Answer to the Complaint. Ordinarily, “a failure to plead anaffirmative defense results in the waiver of that defense and its exclusion from the case.” CHARLES A. WRIGHT &ARTHUR R. MILLER, 5 FEDERAL PRACTICE & PROCEDURE � 1278, at 477 (1990); see United States v. ContinentalIllinois Nat’l Bank & Trust Co. of Chicago, 889 F.2d 1248, 1253 (2d Cir. 1989). A defendant may move to amend its pleading”to assert an omitted affirmative defense on the written consent of the adverse party or by leave of court, which ‘shall be freelygiven when justice so requires.’” WRIGHT & MILLER, supra, at 495 (quoting Fed. R. Civ. P. 15(a)). In this case, Mooneyresponded on the merits of the City’s waiver defense without objecting to the assertion of the defense by motion rather than byresponsive pleading. Thus, we may interpret Mooney’s conduct as an implied consent to file an amended Answer. Alternatively,we may construe the district court’s ruling on the merits of the waiver defense as an implied grant of leave to amend theAnswer, since Mooney has not alleged any prejudice. In either case, we conclude that the waiver defense has not been waived.
FN3 See N.Y. Work. Comp. Law � 20(2).
FN4 The latest Board Notice of Decision in the record, dated December 11, 1997, indicates that “Case is continued.” Although theparties agree that the Board closed the case after the October 1998 hearing, the only document in the record indicating thatMooney’s claim had been closed is an untitled document on the Law Department’s letterhead, dated October 15, 1998. Anotice from the City does not constitute a formal award of the Board.
Mooney v. City of New York United States Court Of Appeals For the Second Circuit August Term, 1999 (Argued: April 11, 2000 Decided: May 22, 2000 ) Docket No 99-9062 GEORGE MOONEY,Plaintiff-Appellant, v. THE CITY OF NEW YORK, Defendant-Appellee, Before: NEWMAN, KEARSE, KATZMANN, Circuit Judges. Appellant appealed from an amended judgment of the United States District Court for the Southern District of New York(Lewis A. Kaplan, Judge) granting appellee’s motion for summary judgment. Vacated and remanded. EDWARD M. KATZ, Cappiello, Hofmann & Katz, New York, NY, for Appellant. JULIE STEINER, Assistant Corporation Counsel (Michael D. Hess, Corporation Counsel of the City of New York; Steven Levi, Elizabeth S. Natrella, Ralph Foertsch, of counsel), for Appellee.
