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Tomlinson v. Continental Casualty Company9/2/2003
pensated. Id. at 407-408. As additional support for its holding, the Maryland court explained that the subrogation provision gives the employer the right to institute the action against the third party and thereby recover the compensation it has paid before the employee is able to recover damages above that amount. Id. at 409. The court noted "(t)his illustrates a legislative intent to ensure that a neutral party, the employer, is not made to pay for damages caused by the actual at-fault party." Id. at 409-410. The court held the worker must fully reimburse the compensation insurer for the full amount of workers' compensation benefits after receiving a greater amount from a third-party tortfeasor.
Section 44 similarly requires a worker injured by a third party to assign his third-party cause of action to the employer or its insurer when the worker elects to seek workers' compensation benefits for injuries caused by a third party. As the Oklahoma Supreme Court explained long ago:
The Workmen's Compensation Act was enacted by the Legislature for the benefit of injured employees . . . . By this act it was not intended to affect, in any manner, the right of one to proceed against a negligent third party for personal injuries. The Workmen's Compensation Act provides compensation for injury without regard to negligence. It is obvious, therefore, that a cause of action arising under the Workmen's Compensation Act is by nature distinctly different from the common-law remedy for damages resulting from negligence. Although both arise by reason of injury, yet, under the Workmen's Compensation Act, the recovery is without regard to negligence and is governed by a scale or rate fixed by the Legislature and is in lieu of wages, while the common-law action for personal injury must be based upon and flow directly and proximately from negligent acts. . . . It is apparent that the Legislature intended that before an injured workman, . . . whose injuries were caused by the negligence of a third party, should be entitled to the extraordinary benefits of the act, he should be required to elect which liability he would pursue first. For the protection of his employer and insurance carrier, who are obliged under the act to pay for injuries without regard to negligence, if an injured employee files a claim for compensation but desires first to proceed against the third party involved, he is required to assert such intention and assign his cause of action against the third party, . . . so that in the event of recovery against the negligent third party the employer and insurance carrier may, to some extent, recoup their loss by reason of payments made for injury without regard to negligence.
Parkhill Truck Co. v. Wilson, 1942 OK 168,125 P.2d 203, 207, 190 Okla. 473. This language demonstrates another basis for rejecting the "make whole" rule in §44 subrogation: workers' compensation benefits are intended to replace wages and are not damages for negligence. Accordingly, the goal is not necessarily to "make whole" the injured worker by payment of workers' compensation benefits. The employee must elect which benefits to receive first, and if he pursues both, the compensation insurer is statutorily entitled to reimbursement from any recovery from the third-party tortfeasor.
For these reasons, we reverse the summary judgment entered in favor of Tomlinson and remand for a determination of Transcontinental's subrogation interest under the terms of §44.
REVERSED AND REMANDED.
ADAMS, P.J., and JOPLIN, C.J., concur.
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