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Yoh v. Schlachter6/28/2002
distinguishes between damages recovered by injured employees from tortfeasors and damages recovered by injured employees pursuant to uninsured and underinsured motorist benefit polices. Former R.C. 4123.93 provides that the right of subrogation only applies to actions against a "third-party tortfeasor." We need not reach this issue inasmuch as we have already found R.C. 4123.93(D) unconstitutional on other grounds.
. Third, appellee argues that former R.C. 4123.93 is unconstitutional because it provides that the entire amount of any award or settlement is subject to absolute reimbursement rights of the employer regardless of whether the award or settlement was duplicative of the workers' compensation benefits received.
. R.C. 4123.931(D) provides that " he entire amount of any settlement or compromise of an action or claim is subject to the subrogation right of a statutory subrogee, *." Former R.C. 4123.93(B) provided that:
. "(B) The administrator of workers' compensation, for the amount of compensation and benefits paid *, an employer who contracts with an independent third party *, to the extent of the costs of such services and supplies provided *, and a self-insuring employer, for the amount of compensation and benefits paid *, are subrogated to all of the rights of that employee against a third-party tortfeasor involving that compensable injury or disease." (Emphasis added.)
. We find that subsection (B) of former R.C. 4123.93 limits the statutory subrogee's right of reimbursement to the amount expended on the injured employee's behalf. Therefore, we find that subsection (B) does not violate the Ohio Constitution because it does not permit the statutory subrogee to obtain a windfall recovery.
. Finally, appellee argues that if the former R.C. 4123.93 is still effective, and the Commission is entitled to subrogation, it is limited to the trial court's original judgment award of $38,000 minus reasonable attorney fees and costs. Furthermore, since the Commission did not prove that appellee's attorneys fees and costs were less than $38,000, it cannot be awarded any of the funds held in escrow. Because we have concluded that former R.C. 4123.93 is unconstitutional and would also not be applicable to this case, we need not address this issue.
. Appellant's sole assignment of error is not well-taken. Having found that the trial court did not commit error prejudicial to appellant, the judgment of the Williams County Court of Common Pleas is affirmed. Pursuant to App.R. 24, the Commission is hereby ordered to pay the court costs incurred on appeal.
JUDGMENT AFFIRMED.
Peter M. Handwork, J., Melvin L. Resnick, J., Richard W. Knepper, J. CONCUR.
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