Glenford Keith Miller v. Hall Auto Mall ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
GLENFORD KEITH MILLER
v. Record No. 0072-95-1 MEMORANDUM OPINION *
PER CURIAM
HALL AUTO MALL JUNE 27, 1995
AND
VADA GROUP SELF INSURED ASSOCIATION
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Sidney H. Kelsey, Jr., on brief), for appellant.
(Philip J. Infantino; Pender & Coward, on brief), for
appellees.
Glenford Keith Miller contends that the Workers'
Compensation Commission erred in finding that he settled a third-
party tort claim without the knowledge or consent of Hall Auto
Mall ("employer") and its insurance carrier and in ruling that
his claim was barred by Code § 65.2-309. In the alternative,
Miller contends that the employer should receive a credit against
future compensation benefits in an amount equal to the maximum
amount the employer could have recovered from the third-party
settlement proceeds. Upon reviewing the record and the briefs of
the parties, we conclude that this appeal is without merit.
Accordingly, we summarily affirm the commission's decision. Rule
5A:27.
On February 10, 1993, Miller left work and began to cross
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
the street to an employee parking lot. He was struck by an
automobile and sustained severe injuries. The employer filed an
Employer's First Report of Accident with the commission.
However, on June 8, 1993, the employer notified Miller that his
workers' compensation claim was denied. On June 23, 1993, the
commission notified Miller of his rights and obligations under
the Workers' Compensation Act.
On December 22, 1993, Miller settled his third-party
liability claim against the driver of the automobile. Three
weeks after the settlement, Miller filed a workers' compensation
claim with the commission. The employer defended on the ground
that Miller settled his third-party claim without notice to the
employer. The attorney who represented Miller in his third-party
action submitted a letter to the commission stating that the
employer and insurance carrier were aware of Miller's third-party
claim and that the employer had given Miller certain wage
information on a Lost Wage Form.
The deputy commissioner found that neither Miller nor his
attorney informed the employer's insurance carrier of the
settlement. Although the deputy commissioner found that Miller
proved that he sustained a compensable injury by accident, he
ruled that Code § 65.2-309 barred recovery for failure to notify
the employer of the settlement. The commission affirmed the
denial of an award.
Code § 65.2-309(A) provides that "[a] claim against an
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employer . . . shall operate as an assignment to the employer of
any right to recover damages which the injured employee . . . may
have against any other party . . . , and such employer shall be
subrogated to any such right." In applying this statute, we held
that "the employee may not pursue his common law remedy in such a
manner or settle his claim to the prejudice of the employer's
subrogation right and thereafter continue to receive workers'
compensation benefits." Wood v. Caudle-Hyatt, Inc., 18 Va. App.
391, 397, 444 S.E.2d 3, 7 (1994). Furthermore, we stated the
following:
An employee necessarily prejudices his
employer's subrogation rights and, thus, is
barred from obtaining or continuing to
receive benefits under a Workers'
Compensation Award when an employee settles a
third-party tort claim without notice, or
without making a claim for workers'
compensation benefits, or without obtaining
the consent of the employer.
Id. (citing Stone, 184 Va. at 1060, 37 S.E.2d at 75).
No evidence in this record proved that the employer or
carrier were given notice of the settlement prior to Miller's
filing of his workers' compensation claim in January 1994 or that
Miller attempted to obtain the employer's consent to the
settlement. Evidence that the employer may have been aware of
Miller's third-party claim does not prove that the employer was
given an opportunity to consent to the settlement or was given
notice of the settlement.
Miller's contention that the employer waived its subrogation
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rights when it denied his claim on June 8, 1993, is meritless.
See Wood, 18 Va. App. at 397-98, 444 S.E.2d at 7. We also reject
his argument that the right to subrogation did not arise until he
filed his claim with the commission. The employer's right of
subrogation "accrues upon 'the making of a lawful claim against
an employer for compensation,' [b]ut when such claim is made 'the
employer's rights, as assignee of the employee, relate back and
are the same as those of the employee at the time of the
injury.'" Stone v. George W. Helme Co., 184 Va. 1051, 1060, 37
S.E.2d 70, 74 (1946).
Because we find that Miller's claim was barred by Code
§ 65.2-309, we reject his alternative argument that the employer
should have received a credit against future compensation
benefits in an amount equal to the maximum amount the employer
could have recovered from the third-party settlement proceeds.
Accordingly, we affirm the commission's decision.
Affirmed.
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