Mikoll, J. (dissenting). We respectfully dissent. There is a rational distinction for allowing reimbursement of benefits paid in injured-person situations and not for death benefits paid. The losses are different and their compensation under the Workers’ Compensation Law takes such divergence in type of damages into account.
Under the plain language of Workers’ Compensation Law § 33 entitled "Assignments; exemptions”, "[compensation or benefits due under [the Workers’ Compensation Law] shall not be assigned, released or commuted except as provided by [the Workers’ Compensation Law]”. This provision expresses a clear legislative policy to place the payment of workers’ compensation benefits under the control of the Workers’ Compensation Board and indicates that any statutory provision *42relating to payment of benefits conflicting with a provision of the Workers’ Compensation Law should give way to the Workers’ Compensation Law provision. This policy statement indicates that courts should give due deference to provisions of the Workers’ Compensation Law affecting benefits and the Board’s interpretation of those provisions.
In view of the clear mandate of Workers’ Compensation Law § 25 (4) and corresponding case law (see, Matter of Craig v Western Elec. Co., 83 AD2d 709; Matter of Schrider v National Distillers & Chem. Corp., 51 AD2d 1068), the decision of the Board should be upheld (see, Matter of Goodman v Pollio Dairy Prods., 147 AD2d 833, 834-835, lv denied 74 NY2d 606). Therefore, the New York State and Local Police and Fire Retirement System is not entitled to reimbursement for accidental death benefits paid by it to claimant while claimant’s workers’ compensation claim was still pending.
Mahoney, P. J., and Weiss, J., concur with Casey, J.; Mikoll and Harvey, JJ., dissent in an opinion by Mikoll, J.
Ordered that the decision is reversed, without costs, and matter remitted to the Workers’ Compensation Board for further proceedings not inconsistent with this court’s decision.