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White Electric Co. v. Bak3/12/1996
ht to subrogation is defeated by an employee's settlement with a third party without the knowledge or consent of the employer, the employee's benefits under the Workers' Compensation Act are terminated.
Green, 5 Va. App. at 412, 364 S.E.2d at 6 (quoting Safety-Kleen Corp. v. Van Hoy, 225 Va. 64, 69, 300 S.E.2d 750, 753 (1983)); see Barnes, 16 Va. App. at 111, 428 S.E.2d at 302.
In each of the cases cited above, the commission resolved conflicting evidence in favor of the employer and the Court found credible evidence to support the commission's findings:
On appellate review, we must construe the evidence in the light most favorable to the party prevailing below. Factual findings by the commission that are supported by credible evidence are conclusive and binding upon this Court on appeal. The existence of contrary evidence in the record is of no consequence if credible evidence supports the commission's findings.
Barnes at 109, 428 S.E.2d at 301-02 (citations omitted). Applying those principles to the case before us, Barnes and Green may be distinguished.
We agree with the commission that the facts in Blankenship more nearly control this case. In Blankenship, as in the case before us, the aggravation of claimant's condition was short-lived and insufficient to justify a finding that the third-party settlement prejudiced employer's subrogation rights. Moreover, the commission accepted claimant's third-party attorney's testimony that, in the third-party action, he could not prove the TMJ aggravation allegations asserted in the pleadings and, therefore, was forced to accept the $8,000 settlement offer.
Whether claimant's failure to obtain medical treatment aggravated his condition and delayed his recovery to the prejudice of employer is a question of fact decided by the commission adversely to employer. The record supports its findings.
Accordingly, the decision of the commission is affirmed.
Affirmed.
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