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Moretto v. Samaritan Health System10/30/1997
sponsible carrier never paid compensation for this injury because Moretto did not claim it.
We accordingly consider the purposes of subsection 23-1023(B) and section 23-1023 as a whole. Subsection 23-1023(B) is not a statute of limitations. See Smith v. Payne, 156 Ariz. 506, 512, 753 P.2d 1162, 1168 (1988). Its purpose is not to relieve third-party tortfeasors of liability. Id. at 509, 753 P.2d at 1165. Rather, it is part of a statutory scheme that requires tortfeasors to pay damages to those injured by their wrongs, that reimburses employers/carriers for their compensation liability, and that allows injured employees to receive the excess of the damage recovery over compensation but eliminates any double recovery. See, e.g., Martinez v. Industrial Comm'n, 168 Ariz. 307, 310, 812 P.2d 1125, 1128 (App. 1991).
We conclude that extending subsection 23-1023(B) to the current case would not serve the purposes of this statute. Moretto has not claimed or accepted compensation for the back injury and therefore would not receive a double recovery from his tort claim against Samaritan. The responsible workers' compensation carrier has not paid compensation for the back injury and therefore has no right to reimbursement for any increased liability resulting from the back injury. Applying subsection 23-1023(B) to this case would merely create a trap for the unwary and unnecessarily shield an alleged tortfeasor from liability. This obviously was not the intent of the statutory scheme.
We recognize that an employer/carrier whose liability is increased as a result of malpractice may recover not only the compensation paid for the secondary injury but also compensation paid for the primary injury. See Liberty Mut. Ins. Co. v. Western Cas. & Sur. Co., 111 Ariz. 259, 261-62, 527 P.2d 1091, 1093-94 (1974). But see 6 Arthur Larson, Larson's Workers' Compensation Law § 72.65(a) (1997) (criticizing rule). But if Samaritan's interpretation were correct, an employer/carrier whose liability is not increased may sue a tortfeasor solely to recover compensation it paid for the primary injury. We disagree that the legislature intended this anomalous result.
Professor Larson generally supports our Conclusion, indicating that subrogation does not apply when an employer/carrier has not paid compensation for a secondary injury . See 6 Arthur Larson, Larson's Workers' Compensation Law § 72.65(a), at 14-290.74 n.91.1. We also have discovered one case denying subrogation in part because the injured worker did not claim or accept compensation for a secondary injury. See Jefferson Medical College Hosp. v. Savage, 7 Pa. Commw. 35, 298 A.2d 694, 697 (Pa. Commw. 1972).
For these reasons, we reverse summary judgment and remand for further proceedings consistent with this opinion.
EDWARD C. VOSS, Judge
Concurring
SUSAN A. EHRLICH, Presiding Judge
JAMES B. SULT, Judge
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