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Artrip v. Kerns Bakeries Inc.12/10/1996
's finding that the August 18, 1992 automobile accident caused a significant exacerbation of claimant's compensable July 13, 1992 back injury, it is binding upon this Court.
II.
Code ยง 65.2-309(A) provides that " claim against an employer . . . shall operate as an assignment to the employer of any right to recover damages which the injured employee . . . may have against any other party . . ., and such employer shall be subrogated to any such right . . . ." In applying this statute, we held that "the employee may not pursue his common law remedy in such a manner or settle his claim to the prejudice of the employer's subrogation right and thereafter continue to receive workers' compensation benefits." Wood v. Caudle-Hyatt, Inc., 18 Va. App. 391, 397, 444 S.E.2d 3, 7 (1994). Furthermore, we stated:
"An employee necessarily prejudices his employer's subrogation rights and, thus, is barred from obtaining or continuing to receive benefits under a Workers' Compensation Award when an employee settles a third-party tort claim without notice, or without making a claim for workers' compensation benefits, or without obtaining the consent of the employer." Id. (citing Stone v. George W. Helme Co., 184 Va. 1051, 1060, 37 S.E.2d 70, 75 (1946)).
This rule applies whether the third party tort feasor causes the original compensable injury or a later aggravation of that injury. Barnes v. Wise Fashions, 16 Va. App. 108, 111, 428 S.E.2d 301, 302 (1993).
Claimant admitted that, after receiving compensation payments for nine and one-half weeks out of a possible 500 weeks, he settled the third-party claim related to the injuries he sustained in the automobile accident without employer's knowledge and consent. This evidence supports the commission's finding that claimant's actions clearly prejudiced employer. Accordingly, the commission did not err in terminating claimant's benefits under the Act.
For the reasons stated, we affirm the commission's decision.
Affirmed.
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