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Gutierrez v. City of Albuquerque8/25/1998
for pain and suffering ($46,200) is beyond the reach of Employer. Cf. Swanson v. Champion International, 646 P.2d 1166 (Mont. 1982) (non-economic elements of wrongful death recovery not subject to workers' compensation lien).
{19} Employer, then, is entitled to $19,880 in reimbursement, less its proportionate share of fees and costs. Note that Employer would not be entitled to draw on Worker's pain and suffering recovery or the remainder of her lost wage recovery to receive full reimbursement for its
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outstanding medical outlays. See NMSA 1978, ยง 52-5-17 (employer's right to reimbursement is limited "to the extent of payment by the employer" under the Act).
D. Protecting Employer's Interest Through Statutory Subrogation
{20} Once the amount of the employer's interest in the tort recovery has been determined, we believe the legislature intended that amount to be paid or assigned to the employer under principles of subrogation. Compare (" uch [compensation] payment operates as an assignment of the cause of action against the third- party tortfeasor, pro tanto for payments made under the Act.") with (insurer that had made payments to injured insured became subrogated and received an assignment pro tanto of a cause of action upon the insurer's partial payment of a claim). Whether we call this interest a pro tanto assignment, a subrogation lien, or a right of reimbursement is unimportant. Compare ("The right of reimbursement is the right to receive back that which has been paid to another.") with ) ("In its normal sense, subrogation gives the payor a right to collect what it has paid from the party who caused the damage."). What is important is that the amount of the employer's interest in any case is determined by what it has paid for, and that this interest is protected by legal principles that avoid inequities to employers. Our concern is that we avoid situations where, as here, Worker's trial counsel failed to timely notify Employer of the settlement, or where, as in St. ), the worker disappeared with the entire tort settlement. Enforcement of subrogation principles avoids these situations. See, e.g., ) (discussing how the interests of an insurer who has paid damages to an insured tort victim are protected by principles of subrogation as against both the tort victim and the third-party tortfeasor).
E. Other Methods of Allocation
{21} We have carefully considered the various methods of allocation advocated by the parties and amici and conclude that they do not fulfill the legislature's intent. Several of these methods are incorrectly premised on the basis that tort recovery and compensation benefits are freely interchangeable, and do not tie the employer's right to reimbursement to the extent of compensation paid for each element of a worker's recovery.
1. Method Advocated by Employer and NMDLA
{22} Employer and amicus New Mexico Defense Lawyers Association (NMDLA) maintain that any tort award a worker receives amounts to double recovery. We have demonstrated that under this interpretation Employer will be erroneously "reimbursed" with pain and suffering proceeds where Employer has paid nothing in satisfaction of this damage element. The legislature did not intend Section 52-5-17 to allow reimbursement to employers of monies which serve tort public policy goals.
2. Method Applied by Court of Appeals Majority
{23} The Court of Appeals majority's analysis effectively adopted Employer's position as a premise. It held that "Montoya should be read to mean what the
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