Summary
In Latham v. Jim Joe General Contractors, 4 Conn. Workers' Comp. Rev. Op. 51, 304 CRD-2-84 (1987), reversed on other grounds, 16 Conn. App. 138 (1988), we considered this identical issue.
Summary of this case from Libby v. Goodwin PontiacOpinion
CASE NO. 304 CRD-2-84
APRIL 13, 1987
The claimant was represented by Lewis C. Maruzo, Esq.
The respondents were represented by Richard S. Bartlett, Esq.
This Petition for Review from the February 8, 1984 Ruling on Respondents' Motion for Apportionment pursuant to Sec. 31-293 made by the Commissioner of the Second District was heard January 31, 1986 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners A. Paul Berte and Michael Sherman.
FINDING AND AWARD
1-15. Paragraphs 1 through 15 of the Second District's Finding and Award are made paragraphs 1 through 15 of this Division's Finding and Award.
WHEREFORE IT IS ORDERED, ADJUDGED AND AWARDED:
A. Respondent's request for reimbursement of its claimed lien is denied.
B. Respondent's request for credit against future compensation benefit is denied
OPINION
Claimant suffered a compensable right knee injury December 24, 1980 in a motor vehicle accident. He made a claim for damages against a third party tortfeasor, insured by the Travelers Insurance Company whose policy limit was $25,000. He was paid the entire $25,000 policy amount by Travelers and agreed not to pursue that carrier further. Claimant gave no formal release document to Travelers. Middlesex, the Workers' Compensation insurer, paid compensation benefits to claimant.
It seeks reimbursement under Sec. 31-293 C.G.S. for those benefits paid. The compensation carrier also argues there had been an understanding that claimant would honor its claim and wishes to hold claimant to that promise
The Second District Commissioner did not grant Middlesex's request. He based his denial on a conclusion that he lacked jurisdiction. Middlesex's appeal presents two issues: (1) Did the Commissioner have jurisdiction; and (2) should he have granted reimbursement to the compensation carrier. As to the first issue the parties before us seem to have agreed that there was jurisdiction. However, jurisdiction cannot be created by agreement of the parties. It needs to be derived from the statute.
The relevant portion of Sec. 31-293 states:
". . . and any employer having paid, or having become obligated to pay, compensation under the provisions of this chapter may bring an action against such other person to recover any amount that he has paid or has become obligated to pay as compensation to such injured employee. . . . If the damages, after deducting the employee's expenses as provided above, are more than sufficient to reimburse the employer, damages shall be assessed in his favor in a sum sufficient to reimburse him for his claim, and the excess shall be assessed in favor of the injured employee. No compromise with such third person by either employer or employee shall be binding upon or affect the rights of the other, unless assented to by him. For the purposes of this section the employer's claim shall consist of (1) the amount of any compensation which he has paid on account of the injury which is the subject of the suit and (2) an amount equal to the present worth of any probable future payments which he has by award become obligated to pay on account of such injury."
The trial Commissioner ruled that as no compromise agreement had been approved by him, there was no matter for him to act upon and consequently no jurisdiction in the commission. We think that represents an unduly narrow and formalistic reading of Sec. 31-293. Our opinion in Thomas v. Carpenter Technology Corp., 2 Conn. Workers' Comp. Rev. Op. 127 (1985), cert. denied 198 Conn. 804 (1986) sets forth our much broader view of a commissioner's powers. We conclude therefore that the commissioner had jurisdiction to consider respondent's Motion for Reimbursement.
But we do agree with the result reached below even if for different reasons. Skitromo v. Meriden Yellow Cab Co., 3 Conn. Workers' Comp. Rev. Op. 37 (1986) holds that a compensation carrier must comply strictly with the statute if it seeks reimbursement. In the instant matter neither claimant nor Middlesex brought suit against the third party tort-feasor. Hence the compensation carrier was not barred from bringing suit in its own name. The liability carrier then would certainly have had some serious thoughts about settling the matter without considering the compensation insurer's claim.
Another alternative might have been for Middlesex to sue claimant in tort alleging his misrepresentation on which it relied to its detriment. Instead the respondent did neither, it chose complacently to sit on its rights.
Under the circumstances the commissioner's denial of respondent's Motion for Reimbursement was correct. His decision is affirmed in accordance with our Finding and Award as corrected.
Commissioners A. Paul Berte and Michael Sherman concur in this opinion.
Claimant also recovered $15,000 under the uninsured motorist provision of his automobile insurance policy which was stacked with the third party tort-feasor's coverage. No claim for credit against the uninsured motorist provision proceeds of the claimant's policy was sought.
Vide language of Sec. 31-293 cited above.