McConnaughhay, Coonrod, Pope, Weaver, Stern & Thomas, P.A.

Aetna Ins. Co. v. Norman

444 So.2d 1124, (Fla.App. 3 Dist., Feb 07, 1984)

The employer's right to recovery in third party claims is 100% (1981) of the benefits paid unless there is comparative negligence or a limitation on the extent of insurance coverage or recoverability of the third party tort-feasor. There is no basis under the statute for reducing the amount of the lien further by deducting sums received by the injured worker for pain and suffering and the derivative claim of the wife. A contrary result was found in the case of Orange County v. Sealy 412 So.2d 25. {\i Referenced case not in WCR database}Supreme Court opinion which held that the workers' compensation lien set out in subsection 440.39(3)(a) F.S. applies to both present and future benefits. The Supreme Court followed the First District Court of Appeal in the case of Risk Management Services Inc. v. McCraney 420 So.2d 374 in regard to the statutory compensation lien on future benefits. Under that opinion the workers' compensation carrier has a present lien on the net tort recovery for benefits it had paid reduced to the extent that the claimant failed to recover the full value of damages from the third party tort-feasor because of comparative negligence or limits of liability and collectibility. In addition to this present lien the carrier also has a lien on any future benefits which is to be reduced by the percentage that the claimant did not obtain a full recovery from the tort-feasor. The carrier must "recommence payment of full benefits if and when the sum of the amounts recovered and retained pursuant to its lien equals the claimant's net recovery on the tort claim." The net amount obtained by the claimant from the third party tort-feasor is the sum of the settlement or judgment less attorney's fees and costs.This case dealt with the extent of a workers' compensation insurer's lien on the proceeds of a third party settlement when that settlement is less than full value of the claim because of the claimant's comparative negligence. In particular this case dealt with the amount and duration of the adjustment to future workers' compensation benefits. In regard to future benefits payable and the cap on the amount that can be obtained by the employer/carrier the Supreme Court ruled that the maximum amount recoverable is the net proceeds received by the injured employee after attorney's fees and costs have been deducted. The net proceeds recovered are not reduced by the comparative negligence of the injured employee thereby reducing the cap further.

Cases

Workers' Compensation

Aetna Ins. Co. v. Norman