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Calalpa v. Dae Ryung Co.1/31/2003
laska 1976) (court held that mere acceptance of workers' compensation benefits by the employee did not constitute an election and therefore the employee could bring his common law suit, but payments made would be applied against any damage judgment he obtained); and Worthington v. Industrial Commission of Arizona, 85 Ariz. 310, 316, 338 P.2d 363 (1959) (court held that receipt of workers' compensation benefits did not cause a widow to lose her rights to bring a wrongful death action although the sum received in the tort settlement could be offset against the amount of any compensation recovery); Mike v. Aliquippa, 279 Pa.Super. 382, 393, 421 A.2d 251 (1980) (court held that any compensation benefits that had been accepted would be duly credited against any recovery from the tort action to prevent any possibility of double recovery). [Suarez v. Dickmont Plastics Corp., 639 A.2d 507, 515-16 (Conn. 1994).] See also Gagnard v. Baldridge, 612 So. 2d 732, 736 (La. 1993) (employer entitled to offset in intentional wrong suit, but only for monies received for past and future wages and medical expenses.).
On the other hand, a few states have strictly required an election, thus obviating the necessity for a lien or offset. See 6 Arthur Larson and Lex K. Larson, Larson's Workers' Compensation, ยง 115.02 at 115-2. Only Ohio has allowed an employee to seek both types of remedies and keep both the compensation and tort damages award. Jones v. VIP Dev. Co., 472 N.E.2d 1046 (Ohio 1984).
Irrespective of foreign jurisdiction law on the issue, Millison has clearly permitted an employee to pursue both remedies, but recognized that the employer retains the right to a lien or offset for compensation benefits against monies obtained in the tort litigation. We are convinced this is a section 40 lien.
Affirmed.
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