 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Paradiso v. Tipps Equipment11/20/2003
he future entitlement to survivors' benefits into the reimbursement right" when the court "calculated the full undiscounted 700-week entitlement at $254,520[,]" used that amount as the numerator and the tort damage wage loss figure of $740,021 as the denominator, with a resulting $201,600 as the portion of actual tort recovery allocated to wage loss, and allowed recovery before deduction for pro rata cost of litigation, of 34.4% of that amount, or $69,350. The WCJ calculated Insurer's reimbursement right for wage loss before deduction for pro rata cost of litigation, stating that if the court had considered only paid benefits, the benefits would have been 8.8% of $201,600, or $17,740.80. Thus, the WCJ concluded, Insurer "wants to be reimbursed for future benefits that have not yet been paid[,]" yet, " t the same time, . . . wants to be relieved of any obligation to pay those future benefits." According to the WCJ, "Insurer cannot have it both ways."
E. The Significance of Montoya and Gutierrez
In Montoya, the employer was paying temporary total disability benefits to the worker when the worker sued the third party tortfeasor and settled that action for $7,500. Montoya, 114 N.M. at 355, 838 P.2d at 972. Following dismissal of the tort action based on the settlement, the employer ceased paying compensation . Id. The worker then filed a claim to reinstate the benefits. Id. The WCJ granted the employer summary judgment on the basis of existing case precedent ruling that "when the worker collects in full a judgment from a third-party tortfeasor in an amount that is less than the maximum the worker would have been entitled to receive under the Act, the worker is barred from subsequently recovering workers' compensation." Id. at 356, 838 P.2d at 973. The rationale underlying the case precedent was the concern about "the purported double recovery that would arise should the [worker] be permitted to receive compensation," that is, recovery by the worker for the full loss suffered, making him financially whole, and also receipt of subsequent compensation. Id.
The Supreme Court, in Montoya, reversed the denial of benefits to the worker by the WCJ. Id. at 354, 838 P.2d at 971. Under the view that the broader objective of Section 52-5-17 was "to achieve an equitable distribution of the risk of loss," id. at 357, 838 P.2d at 974, the Court overruled precedent that had created "the fiction that a worker has been made financially whole when the worker has received less than the compensation and related benefits to which [the worker was] entitled under the Act." Id. at 358, 838 P.2d at 975. The Court stated that " f there is a problem with a satisfaction of a third-party claim, it does not go to double recovery. Rather, it goes to the amount of reimbursement or credit to which the employer is entitled." Id. at 358, 838 P.2d at 975. The Court further stated that the worker could show that a compromise settlement did not discharge fully the employer's liability to pay benefits, and that "if the worker has dealt with the third party in good faith and at arm's length, then the net amount paid presumptively would be the amount by which the employer's liability is reduced." Id.; see also Gutierrez, 1998-NMSC-027, 14 (interpreting this language in Montoya to require the WCJ, in making an equitable allocation of settlement proceeds, to "start from the presumption that the employer is entitled to full reimbursement"). The Court concluded with the statement:
If fairness of the amount is contested, the must hold a hearing to determine whether the amount paid to satisfy the third-party claim comports with the proportionate fault of the third party and with a reasonable compromise
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 New Mexico Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|