Wednesday, April 8, 2015

Court remands subrogation finding with consortium damages

The Commission went too far to address a subrogation dispute in a third party settlement involving a wife’s loss of consortium claim when the wife was not a party to the comp case.    Graham V Latco Contractors, 2015 MO App. Lexis 379 (April 7, 2015) found the Commission violated due process of the claimant’s spouse.

The third party settlement contained an no allocation for the claimant and his spouse.  The employer was entitled to a portion of the claimant's net recovery but the comp subrogation statute did not allow recovery for the wife's consortium recovery.   The Commission concluded that the spouse was presumed to have no recovery and made the entire net recovery subject to subrogation, following Ryder Integrated Logistics v Royse, 125 F. Supp. 2d 375 (E.D. MO 2000).
The court found Ryder unpersuasive and that the Commission violated due process because  the claimant’s spouse had never been added as a party.
The case is remanded to the Commission to amend the award. Similarly, MIGA was not a proper party under 287.150.6 for the ALJ to find a subrogation interest or for the Commission to take it away.  The court noted the civil rule for joinder  provided no remedy to add the spouse as a party.
See also  McGuire v Christian County, 2014 MO App. Lexis 502 (May 5, 2014).(finding no right of joinder).

 Claimant at age 41 was awarded total disablity when  he became hypersensitive to smells from building and maintaining chicken houses.  He last worked 15 years ago.  He settled a personal injury case against Tyson for $730,000.  His worker’s compensation carrier, Legion, became insolvent in 2002 about two years after he stopped working.  

Graham was modified by the Commission, 2015, MO WCLR Lexis 46 (May 14, 2015).

Atty: Rau, Petraborg, Wilfong