Jackson v. Wyoming State Treasurer ex rel. Workmen's Compensation Department ( 1974 )

Mr. Chief Justice PARKER

delivered the opinion of the court.

Plaintiff, Marjorie F. Jackson, whose husband, an employee covered by Workmen’s Compensation had been killed during 1968 in an employment related motor vehicle accident, was awarded under the provisions of § 27-87, W.S.1957, $13,000 payable at the rate of $165 per month, plus $600 burial and $40 ambulance expenses.. Thereafter at a time when she had been paid eighteen of the monthly installments she received a $30,000 settlement from a party whom she had sued as being responsible for her husband’s death. Under the rationale that when a deferred account is established in favor of a claimant the money has been “paid,” the state treasurer, relying on § 27-54, W.S.1957,¹ requested reimbursement in the sum of $13,333.33, itemized as:

Settlement: $30,000.00

Less one-third for costs of collection: 10,000.00

Balance remaining: $20,000.00

Less one-third to claimant: 6,666.66

Balance remaining and payable to the Workmen’s Compensation Department: $13,333.33.

The widow’s counsel responded that under the wording of the statute any reimbursement was confined to the amount which had been paid at the time of the third-party settlement and that the sum she was obligated to repay was only $1,604.45. The resulting impasse culminated in a declaratory judgment action by Mrs. Jackson under § 1-1049 et seq., W.S.1957, praying that the Workmen’s Compensation Department on payment of the last-mentioned amount be required to give her acquittance of any further liability. Plaintiff also indicated in the complaint her opinion that the law as intended to be applied was unconstitutional, violating the Fifth, Thirteenth, and Fourteenth Amendments of the U.S.Const., and Art. 1, § 6, Wyo.Const. In the answer, defendant alleged that as of October 31, 1969, the date of settlement by plaintiff, she had received compensation in the amount of $640 as well as monthly payments totaling $2,940 of the $13,000 award, which had been placed in a deferred account payable to her benefit, resulting in a total expenditure by the defendant in plaintiff’s behalf as of October 31, 1969, of $13,640 and that under the formula set forth in § 27-54, in effect at the time of the death of her husband, the balance payable to the department was $13,333. Defendant thereafter moved for and was granted summary judgment, the court concluding that § 27-54, prior to the amendment effected by § 1, c. 191, S.L. of Wyoming 1969, governed and that under it defendant was entitled to reimbursement in the amount of $13,333, and further, that the law did not violate Art. 1, § 6, Wyo. Const., or the Fifth, Thirteenth, or Fourteenth Amendments, U.S.Const. Plaintiff has appealed.

In essence plaintiff now argues before this court that while the parties agree that the statute in effect was § 27-54 as it stood at the time of the death of her husband defendant takes the position that the words “or reasonably anticipated to be received,” added by the 1969 amendment, were a part of (inescapably, by implication, because they were not actually) the original statute which controls plaintiff’s obligation, and insists that the amorphous “or reasonably anticipated to be received” is blatantly vulnerable to constitutional attack. Since we consider defendant’s position not to be as plaintiff thus sets forth, we see no occasion to enter into a discussion of the 1969 amendment and the envisioned constitutional problems.

Section 27-54 makes clear the lawmakers’ intent that an employee is not entitled to a double recovery for injuries and provides that the industrial accident fund shall be reimbursed for the total amount of all awards received by an employee — § 27-87, stating that a surviving spouse shall receive $13,000 but that in every case the award shall be paid in monthly installments.

Claimant does not directly question the defendant’s statement in the brief that she “received” the $13,000 award although the money had not actually been paid in full to her. Instead she criticizes the inequities of the statutes — as they apply to circumstances such as those in the present instance — which provide that if a surviving spouse shall remarry or die before all the award has been paid, the undistributed portion of it shall revert to the industrial accident fund to be credited and apportioned to the respective fund from which it has been withdrawn.² If any claimant who recovers from a third party because of an accident is disturbed regarding the inequities of a possible double recovery by the employer’s fund, this would undoubtedly be a matter which could be raised in an application to the court under § 27-87 to secure a lump-sum settlement at which time full consideration could be given to the situation. Aside from that, plaintiff’s claimed inequities and incongruous results of the statutes cannot be resolved by courts but must be presented to the legislative body for necessary correction.

Affirmed.

1 . “Where an employee coming under the provisions of this act receives an injury under circumstances creating a legal liability in some person other than the employer to pay damages in respect thereof, the employee if engaged in extra-hazardous work for his employer at the time of the injury shall not be deprived of any compensation which he would otherwise receive under this act. He may also pursue his remedy at law against such third person, except he shall not be entitled to a double recovery for those injuries for which he has been paid compensation under this act or under orders of the district court. In the event that such employee recovers from such third person, in any manner, including judgment, compromise, settlement or release, the proceeds of said recovery for those injuries for which he has been paid compensation under this act shall be divided as follows:

“After deducting the reasonable cost of recovery or collection, which cost shall not exceed thirty-three and one-third per cent (33⅜%), one-third (½) of the remainder shall in any event be paid to the injured employee or his personal representative or other person entitled to bring action. Out of the balance remaining, the industrial accident fund shall be reimbursed, if said balance be sufficient or to the extent of said balance if insufficient, for the total amount of all awards received by the injured employee under this act, including all moneys paid to him or in his behalf for doctor and hospital bills, and for any other purpose in his behalf. Any balance remaining shall be paid to the employee or his personal representative or other person entitled to bring action; and the total amount of such reimbursement shall be credited and apportioned to the respective fund or funds from which the said awards of compensation were withdrawn.

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2 . Section 27-88, W.S.1957.