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Libby v. Goodwin Pontiac

CASE NO. 1637 CRB-2-93-2

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MARCH 21, 1995

DAVID LIBBY

CLAIMANT-APPELLEE

v.

GOODWIN PONTIAC

EMPLOYER

and

HELMSMAN MANAGEMENT SERVICES

INSURER

RESPONDENTS-APPELLANTS

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Robert C. Ruggiero, Jr., Esq., 746 Chapel Street, New Haven, CT 06510 and Joseph S. Dobrowolski, Esq., 51 Elm Street, New Haven, CT 06510.

The respondents were represented by Brian E. Prindle, Esq., 627 Main Street, Manchester, CT 06040.

This Petition for Review from the January 22, 1993 Finding and Award of the Commissioner acting for the Second District was heard February 25, 1994 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Nancy A. Brouillet and Michael S. Miles.

OPINION

JESSE M. FRANKL, CHAIRMAN. The facts of this case are not in dispute. The claimant suffered a work-related injury in an automobile accident on February 1, 1987, which was accepted as compensable by the employer’s compensation carrier. In September of 1989 the claimant reached a $37,365.00 settlement with a third party involved in the accident without commencing suit against the alleged tortfeasor. The respondents were not involved in this agreement, and no money from this recovery was either promised or paid to them. Further, respondents did not pursue an action against the third party by filing suit pursuant to General Statutes § 31-293. The claimant subsequently incurred a $2058.00 hospital bill for treatment of his work-related injury in July of 1990, which the respondents refused to pay since they opined that they should receive a credit against future payments in the amount of the settlement. After considering the issue, the commissioner held in favor of the claimant and ordered the respondent Helmsman Management Service to pay the hospital bill. The respondents have petitioned for review from that decision.

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.1 There, we held that a compensation carrier must comply strictly with the provisions of § 31-293 in order to seek reimbursement from a third party tortfeasor. The statute authorizes “any employer having paid, or having become obligated to pay, compensation under the provisions of this chapter [to] bring an action against the third person to recover any amount that he has paid or has become obligated to pay as compensation to the injured employee.” The fact that the claimant had settled with the tortfeasor’s insurer before filing suit did not bar the employer from bringing suit in its own name. As the employer instead “chose complacently to sit on its rights,” we denied its appeal. Id., 53.

We reach the same conclusion here. “The issue . . . is not whether an employer generally has the right to be reimbursed from a third party tortfeasor for workers’ compensation benefits paid to an injured employee .... Instead, the issue is whether an employer forfeits his right to reimbursement when he fails to act to enforce those rights in the manner prescribed by statute.” Skitromo v. Meriden Yellow Cab Co., 204 Conn. 485, 489 (1987). In this case, as in Latham, the employer never attempted to avail itself of its rights under § 31-293. “By failing to comply with the statutory procedure, any right of the defendants to the plaintiff s third party recovery, including the alleged right to credit that recovery against its future liability, was extinguished.” Skitromo v. Meriden Yellow Cab Co., supra, 489-90. See also Norwalk v. Van Dyke, 33 Conn. Sup. 661 (1976). Any argument embracing the policy against double recovery is negated by the respondents’ failure to properly protect themselves.2

The trial commissioner’s decision is affirmed.

Commissioner Nancy A. Brouillet concurs.

MICHAEL S. MILES, COMMISSIONER, DISSENTING. I dissent. Although the majority properly holds that the respondent is not entitled to reimbursement, I believe the carrier is entitled to a credit against future claims for the net proceeds received by the claimant in the third party action. To rule otherwise results in a windfall to the claimant and is contraindicated by our law as set forth in Rosenbaum v. Hartford News Co., 92 Conn. 398 (1918). I distinguish the Skitromo v. Meriden Yellow Cab Co., 204 Conn. 485 (1987) line of cases since no third party case was ever filed in this matter. Furthermore, since the claimant gave no notice of settlement to the Workers’ Compensation carrier he should not be rewarded. I believe the majority’s holding also violates our law’s general proscription against double recovery for workers’ compensation injuries. See Gurliacci v. Mayer, 218 Conn. 531, 570 (1991) citing Enquist v. General Datacom, 218 Conn. 19, 26 (1991); Paternostro v. Edward Coon Co. 217 Conn. 42, 47-49 (1991). 1 therefore, respectfully, dissent.

1 The subsequent decision of the Appellate Court in Latham rendered our discussion of this issue moot, as the court decided that this Board should not have reached the merits of that case. Nevertheless, our reasoning in Latham is still helpful in analyzing the issue before us, as our view on the correct interpretation of § 31-293 has not changed. BACK TO TEXT

2 Although it is of no aid to the respondents, we note that in P.A. 93-228 the legislature has given an employer or an insurer who has paid workers’ compensation the right to obtain a lien on a judgment or settlement received by a claimant from a third party by simply filing notice of the lien to the third party prior to judgment or settlement. BACK TO TEXT

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