Green v. Warwick Plumbing & Heating Corp.
| Decision Date | 19 January 1988 |
| Docket Number | No. 1459-86-1,1459-86-1 |
| Citation | 364 S.E.2d 4,5 Va.App. 409 |
| Court | Virginia Court of Appeals |
| Parties | Elmer R. GREEN v. WARWICK PLUMBING & HEATING CORPORATION, ET AL. Record |
Gerald G. Poindexter (Gail P. Clayton, Poindexter and Poindexter, Surry, on brief), for appellant.
William S. Sands, Jr. (White, Johnson and Lawrence, Norfolk, on brief), for appellees.
Present: BAKER, BARROW and MOON, JJ.
This is an appeal from a decision of the Industrial Commission which terminated an employee's compensation benefits because the employee, without the employer's prior knowledge or consent, released a third-party tort-feasor from liability for injuries arising out of an automobile accident which exacerbated the employee's work-related disability. Since the release of the third party impaired the employer's right to subrogation, we conclude that the commission correctly terminated the employee's compensation benefits.
The employee injured his back in a work-related accident on May 3, 1983, and, unable to return to work, he received compensation until benefits were terminated by the commission. On March 22, 1984, he was involved in an automobile accident, unrelated to his employment, which exacerbated his original injuries. The employee's treating physician described the automobile accident as playing a pivotal role in the employee's recovery. The doctor said that, if the automobile accident had not occurred, he would have waited one full year after the employee's second laminectomy on February 24, 1984, before deciding whether or not the employee could return to work. He added, however, that he had no reason to believe that the employee would have been unable to return to his employment after that time. After the automobile accident the physician determined that the employee would not be able to return to his pre-injury employment.
The employee entered into an agreement settling all claims against the driver of the automobile for $20,000. Although the employer's insurer had asserted a lien against any possible settlement, neither the employer nor its insurer consented to the settlement or were notified of it before it occurred.
Consequently, the employer filed an Application for Hearing and requested that benefits be suspended since the employee had "made a tort recovery." The deputy commissioner terminated benefits on August 22, 1986, and the commission affirmed the order.
The employer remained liable to the employee for compensation even though he was injured in the intervening automobile accident. An employee is entitled to continued compensation, in spite of an intervening accident, if the intervening accident exacerbates the original injury. Fairfax Hospital v. DeLaFleur, 221 Va. 406, 409, 270 S.E.2d 720, 722 (1980).
The employer was subrogated to the rights of the employee against the person who injured the employee in the automobile accident. Generally, an employer is subrogated to the rights of an employee against any other party causing an injury or death for which the employer is required to provide compensation under the Workers' Compensation Act. Code § 65.1-41. This requirement prevents an employee from obtaining a double recovery of funds paid by an employer and by a third party. Noblin v. Randolph, 180 Va. 345, 359, 23 S.E.2d 209, 214 (1942). No distinction is made between the liability of a third person who causes an original injury and one who causes an aggravation of an injury. Fauver v. Bell, 192 Va. 518, 527, 65 S.E.2d 575, 581 (1951). In either case, an employee is entitled to compensation from his or her employer, and an employer is subrogated to the rights of its employee against a third party who injures the employee. Id.
In this case the employer did not have an opportunity to subrogate its claim because the employee settled his personal injury suit with the third party defendant without notice to or consent of the employer. When an employer's right to subrogation is defeated by an employee's settlement with a third party without the knowledge or consent of the employer, the employee's benefits under the ...
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