 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Yancey v. B&B Supply9/21/2005
Jerrell Yancey appeals the decision of the Workers' Compensation Commission finding that he had been made whole by the proceeds of a third-party lawsuit and that appellees, B&B Supply and Federated Mutual Insurance Company, were entitled to subrogation pursuant to Ark. Code Ann. § 11-9-410 (Supp. 2005). We reverse the decision of the Commission and remand for an award of benefits.
On August 24, 1999, Yancey worked as a truck driver for B&B Supply. While having his truck loaded at the premises of a third party, he was struck by a forklift driven by an employee of the third party. Yancey was thrown into the air and received injuries to his back and left knee, requiring surgery on the knee. Appellees initially accepted Yancey's claim and paid benefits. Appellees later argued Yancey was not entitled to permanent disability benefits. The Administrative Law Judge conducted a hearing and assigned a permanent impairment rating of two percent to Yancey's left lower extremity and ten percent impairment to his body as a whole as a result of the back injury .
Yancey also filed a civil action against the third party seeking damages for past and future medical expenses, permanent injury , and pain and suffering. The jury awarded him $235,000. The jury found that Yancey was thirty percent at fault for the accident, so his award was reduced to $164,500. The jury also awarded Yancey's wife damages in the amount of $15,000, which was reduced to $10,500 due to Yancey's contributory negligence.
In reviewing decisions from the Workers' Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission's findings and affirm if they are supported by substantial evidence. Logan County v. McDonald, ___ Ark. App. ___, ___S.W.3d ___ (Apr. 6, 2005). Substantial evidence is that evidence that a reasonable person might accept as adequate to support a conclusion. Id. The issue is not whether this court might have reached a different result from that of the Commission or whether the evidence would have supported a contrary finding. Id. We will not reverse the Commission's decision unless we are convinced that fair-minded persons with the same facts before them could not have reached the conclusions arrived at by the Commission. Id.
Under Ark. Code Ann. § 11-9-410, employers or workers' compensation insurance carriers have a statutory lien against proceeds recovered from a third party for the injury sustained by the employee. However, that right is not absolute; rather, the insurer's lien right against an insured's settlement with a third party is subject to a court's approval after the carrier has been afforded an opportunity to be heard. S. Cent. Ark. Elec. Coop. v. Buck, 354 Ark. 11, 117 S.W.3d 591 (2003); see also Gen. Accident Ins. Co. v. Jaynes, 343 Ark. 143, 33 S.W.3d 161 (2000); Phillip Morris USA v. James, 79 Ark. App. 72, 83 S.W.3d 441 (2002). An insured's right to be made whole takes precedence over an insurer's right to subrogation, and an insured must be fully compensated before the insurer's right to subrogation arises. Buck, 354 Ark. at 18, 117 S.W.3d at 595. Therefore, the insurer's right to subrogation arises only in situations where the recovery by the insured exceeds his or her total amount of damages incurred. Id., 117 S.W.3d at 595.
Our supreme court has stated that "the precise measure of reimbursement is the amount by which the sum received by the insured from the [third party], together with the insurance proceeds, exceeds the loss sustained and the expense incurred by the insured in realizing on his claim." Franklin v. Heathsource of Ark., 328 Ark. 163, 168, 942 S.W.2d 837,
Page 1 2 3 Arkansas Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|