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Chesapeake Haven Land Corporation v. Litzenberg11/30/2001
loss of consortium claim. After deduction of sums previously paid by the employer and attorney fees, the claimant received $37,200. The trial court ruling would have allowed the claimant to retain the $37,200 and continue to receive compensation benefits. This Court interpreted the legislative mandate of Art. 101, secs. 37 and 58 (now Md. Code Ann. LE § 9-901 to § 9-903) to preclude "double recovery" by the injured employee, and to prevent his receiving less in benefits from a third party than he would have received under Art. 101. Thus, the Court held, when third-party proceeds are distributed, future payments by the insurer are suspended until such time, if it occurs, that the net amount received by the injured party is exceeded by the benefits that would have been payable in the absence of third-party liability. As applied to the Brocker case, benefits would resume when the total benefits payable exceeded $37,200. Stated differently, the insurer's subrogation rights are extended as a "credit" against its obligation to pay future benefits.
A secondary relevant issue in Brocker was the insurer's attempt to establish a subrogation interest in the wife's derivative claim for loss of consortium. In rejecting the insurer's claim, this Court stated:
Although the Workmen's Compensation Act provides a right of subrogation to an employer and insurer § 58, Cogley v. Schnaper and Koren Construction Co., 14 Md. App. 322, 386 A.2d 819 (1972), there must be some act performed or committed by, for, or against the subrogee that gives rise to the right to subrogate. In the instant case the appellants did not, nor were they legally obligated to, pay any sum to Mrs. Mashburn. We perceive no act performed or committed by Mrs. Mashburn that would justify the appellants' being subrogated to any of her claim against Mrs. Vallone. 17 Md. App. at 340.
Appellant argues that nothing in Brocker or the statute authorizes the Workers' Compensation Commission to reduce appellant's credit against future benefits pursuant to LE § 9-902 and the credit should remain at the full amount of the net recovery, $212,687.30. Appellant agrees that the insurer had no right of subrogation to any portion of the loss of consortium claim in Brocker. That result, according to appellant, has no relevance to the present case where "a significant portion of appellee's recovery in the third-party case arose from his claim for future economic loss."
Appellee suggests that the denial of subrogation rights to the recovery by the wife for loss of consortium is "legally analogous" to the present case. Specifically, appellee points out that the compensation benefits he has received do not compensate him for economic loss suffered to his own private business. The essential and controlling fact here, according to appellee, is that the $212,687.30 future economic loss award was for damages to his self-employment business, unrelated to his Chesapeake Haven employment, and not compensated for by any past or future workers' compensation award. Therefore, appellee asserts, the award was for separate damages incurred by appellee for which he has no remedy against any compensation carrier, and appellant is not entitled to a "windfall" in the form of a credit against future compensation benefits that it has no obligation to provide.
The Commission Ruling
Our review of the record herein establishes the following: Appellee's claim for benefits, dated August 31, 1999, raised two issues, namely:
Nature and extent of permanent disability to the following parts of the body:___Back
Calculation of compensation insurer's third party credit.
When the case was heard by the
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