Opinion
CASE NO. 326 CRD-6-84
FEBRUARY 26, 1986
The claimant was represented by Kenneth Bartlett, Esq.
The Respondents were represented by P. Bryden Manning, Esq.
This Petition for Review from the May 18, 1984 Finding and Award of the Commissioner At Large, Acting for the Sixth District, was argued August 16, 1984 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi and Commissioners A. Paul Berte and Edward Bradley.
FINDING AND AWARD
The Finding and Award of the Commissioner below is affirmed and adopted as the Finding and Award of this Division.
OPINION
No factual dispute is here involved. The claimant, Skitromo, was employed as a cab driver by the employer Meriden Yellow Cab Company, Inc. On August 13, 1979 the cab that claimant was driving was rear-ended by another vehicle. As a result, this employee was severely injured and made a workers' compensation claim. Travelers Insurance, the carrier for the employer, between August 13, 1979 and October, 1982 paid Twenty-Seven Thousand One Hundred Twenty-three Dollars ($27,123.00) in indemnity and Fourteen Thousand Two Hundred Eight Dollars ($14,208.00) in medical payments, a total of Forty-One Thousand Three Hundred Thirty-One Dollars ($41,331.00), to the claimant.
In the meantime, Skitromo initiated a common law action against the third party tort feasor returnable May 6, 1980. A certified mail letter was sent October 31, 1980 to Meriden Yellow Cab advising of this court proceeding. The letter was received November 1, 1980. On January 14, 1981, the respondent filed a Motion to Intervene in that lawsuit. That Motion was denied because it was filed beyond the thirty day period provided in Sec. 31-293 C.G.S.
Sec. 31-293. Liability of third persons to employer and employee. When any injury for which compensation is payable under the provisions of this chapter has been sustained under circumstances creating in some other person than the employer a legal liability to pay damages in respect thereto, the injured employee may claim compensation under the provisions of this chapter, but the payment or award of compensation shall not affect the claim or right of action of such injured employee against such other person to recover damages for such injury, 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 either such employee or such employer brings such action against such third person, he shall forthwith notify the other, in writing, by personal presentation or by registered or certified mail, of such fact and of the name of the court to which the writ is returnable, and such other may join as a party plaintiff in such action within thirty days after such notification, and, if such other fails to join as a party plaintiff, his right of action against such third person shall abate. In any case in which an employee brings an action against a third party in accordance with the provisions of this section, and the employer is a party defendant in such action, the employer may join as a party plaintiff in such action. The bringing of any such action against an employer shall not constitute notice to such employer within the meaning of this section. If such employer and employee join as parties plaintiff in such action and any damages are recovered, such damages shall be so apportioned that the claim of the employer, as defined in this section, shall take precedence over that of the injured employee in the proceeds of such recovery, after the deduction of reasonable and necessary expenditures including attorneys' fees, incurred by the employee in effecting such recovery. The rendition of a judgment in favor of the employee or the employer against such party shall not terminate the employer's obligation to make further compensation, including medical expenses, which the compensation commissioner thereafter deems payable 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 word "compensation," as used in this section, shall be construed to include not only incapacity payments to an injured employee and payments to the dependents of a deceased employee, but also sums paid out for surgical, medical and hospital services to an injured employee, the one thousand dollar burial fee provided by law and payments made under the provisions of sections 31-312 and 31-313.
The third party action was settled in October, 1982 for Ninety Thousand Dollars ($90,000.00). Claimant netted Fifty-Six Thousand Six Hundred Ten Dollars and eighty cents ($56,610.80) after payment of expenses and some doctors' fees. As a consequence of their failure of timely intervention in the third party action, the respondents concede they have no right to reimbursement of the Forty-One Thousand Three Hundred Thirty-One Dollars ($41,331.00) already expended. However they ceased paying workers' compensation benefits due claimant after the date of the settlement. Their alleged justification for this stoppage is that they have a right to a "discharge of their inchoate" future "liability to pay. . . benefits, at least to the extent of Mr. Skitromo's net recovery in the third party settlement." The Commissioner At Large sitting in the Sixth District disagreed with this claim and ordered payment of workers' compensation benefits due claimant. The respondents have appealed to this tribunal.
Their appeal relies on some innovative reasoning. The Court's denial of their right to reimbursement for past expenditures due to their untimely intervention in the lawsuit does not, they say, foreclose them from claiming a lien against the proceeds of that same lawsuit for future workers' compensation liability. In pressing that argument they seek to distinguish City of Norwalk v. Van Dyke, 33 Conn. Sup. 661 (App. Session 1976) and Ricard v. Stanadyne, Inc., 181 Conn. 321 (1980) and to resurrect, Rosenbaum v. Hartford News Co., 92 Conn. 398 (1918) and Sears Roebuck v. Bree, 4 Conn. Sup. 1 (1936) as well as some obiter in Stavola v. Palmer, 136 Conn. 670 (1950)
Justice Inglis wrote the Stavola opinion in 1950 as he had the Bree memorandum fourteen years earlier. The Stavola language cited by the respondents is as follows:
"In cases in which both the employee and the employer were parties plaintiff and the damages awarded were in excess of the workmen's compensation which the employer was obligated to pay, we have approved a procedure whereby the judgment directs the reimbursement of the employer for such workmen's compensation as he had paid to the date of the trial and the payment of the balance of the amount of the verdict to the employee, with the proviso that then the employer is discharged from all future liability to pay compensation. Bombanello v. Throm, 104 Conn. 504, Rosenbaum v. Hartford News Co., 92 Conn. 398, Stavola v. Palmer, supra, 680."
Justice Inglis in Stavola was repeating the reasoning expounded in Sears Roebuck Co. v. Bree, supra, 5. However, the Stavola language cited above does not contain the holding of the case. Actually, the Stavola decision permitted the deceased employee's dependent survivors to continue to receive benefits under the act even after judgment against the tort feasor.
However, whatever the cases may have held in the first half century of the law when temporary total and survivors' benefits were limited in duration, they are no longer the law. The appellate session opinion in the Van Dyke case states:
". . . The general rule is that where a statute gives a right of action which did not exist at common law, and fixes the time within which the right must be enforced, the time fixed is a limitation or condition attached to the right — it is a limitation of the liability itself as created, and not of the remedy alone." DeMartino v. Siemon, 90 Conn. 527, 528. It is clear that the cause of action asserted by the plaintiff was unknown to the common law. Public policy, in the absence of statutory provisions to the contrary, prohibits the assignment of a right of action for personal injuries resulting from negligence. Berlinski v. Ovellette, 164 Conn. 482, 485. In the absence of third-party or subrogation statutes, it is held that there is no right of equitable subrogation available to an employer for reimbursement of workmen's compensation payments. In states which have no such statutes, a double recovery by the injured employee is permitted. 2A Larson, Workmen's Compensation Law 71.30."
Norwalk v. Van Dyke, 33 Conn. Sup. supra 664-665
The Supreme Court endorsed the Van Dyke rationale in a later case by a per curiam opinion: "It is conceded that Branch failed to file its application to intervene within thirty days of its receipt of notice of the institution of the plaintiff's action. By such failure, Branch's independent derivative action against the defendant; Stavola v. Palmer, (citation omitted), was abated." Ricard v. Stanadyne, supra, 323.
These two cases decided in the last decade represent the controlling interpretation of the law as it is today, amended many times since Stavola was written in 1950. The employer's right to subrogation or reimbursement is not a common law right. It is a statutory right, and the statutory procedure for its enforcement must be scrupulously followed if the employer is to prevail. "The imperfection is not in the statute which provides a simple means of effectuating the rights created but in those who fail to avail themselves of its benefits for no justifiable reason." Norwalk v. Van Dyke, supra, 667.
Therefore, the respondents have lost all right to the proceeds of Skitromo's third party action against the tort feasor because of their untimely failed intervention in that lawsuit. They cannot look to those proceeds either for past expenditures or for future liability. The harvest from that lawsuit is for them forbidden fruit since they failed to pluck it in the only manner permitted by the statute.
The appeal is dismissed and the decision of the Commissioner is affirmed.
Commissioners A. Paul Berte and Edward Bradley concur in this opinion.