(a) Where the injury for which compensation is payable under chapters 29 — 38 of this
title was caused under circumstances creating a legal liability in some person other
than the employer to pay damages in respect of the injury, the employee may take proceedings,
both against that person to recover damages and against any person liable to pay compensation
under those chapters for that compensation, and the employee shall be entitled to
receive both damages and compensation. The employee, in recovering damages either
by judgment or settlement from the person so liable to pay damages, shall reimburse
the person by whom the compensation was paid to the extent of the compensation paid
as of the date of the judgment or settlement and the receipt of those damages by the
employee shall not bar future compensation. An insurer shall be entitled to suspend
the payment of compensation benefits payable to the employee when the damages recovered
by judgment or settlement from the person so liable to pay damages exceeds the compensation
paid as of the date of the judgment or settlement. The suspension period shall be
the number of weeks that are equal to the excess damages paid divided by the employee’s
weekly compensation rate; however, during the period of suspension the employee shall
be entitled to receive the benefit of all medical and hospital payments on his or
her behalf. If the employee has been paid compensation under those chapters, the person
by whom the compensation was paid shall be entitled to indemnity from the person liable
to pay damages, and to the extent of that indemnity shall be subrogated to the rights
of the employee to recover those damages. When money has been recovered either by
judgment or by settlement by an employee from the person liable to pay damages, by
suit or settlement, and the employee is required to reimburse the person by whom the
compensation was paid, the employee or his or her attorney shall be entitled to withhold
from the amount to be reimbursed that proportion of the costs, witness expenses, and
other out-of-pocket expenses and attorney fees which the amount which the employee
is required to reimburse the person by whom compensation was paid bears to the amount
recovered from the third party.
(b) In any case in which the employee or, in case of death, the administrator of the employee’s
estate neglects to exercise the employee’s right of action by failing to file a lawsuit
against such third person within two (2) years and eight (8) months after the injury,
the self-insured employer or the employer’s insurance carrier may so proceed and shall
be subrogated to the rights of the injured employee or, in case of death, to the rights
of the administrator to recover against such person; provided, that no subrogation
action shall commence unless at least twenty-six (26) weeks prior to the expiration
of the two (2) years and eight (8) months the self-insured employer or the employer’s
insurance carrier has notified the employee, or in the case of death, the administrator
of the employee’s estate, in writing by personal service or certified mail, that failure
to commence such action within two (2) years and eight (8) months after the injury
will operate as an assignment of the right of action to the self-insured employer
or the employer’s insurance carrier. Upon filing the lawsuit, the attorney for the
self-insured employer or the employer’s insurance carrier shall notify the employee
in writing by personal service or certified mail of the action and the name of the
court where it was filed and the employee may join as a plaintiff in the action within
thirty (30) days after the notification, and, if the employee fails to join, the right
of joinder shall abate. The right of the employee, or in case of death, the administrator
of the employee’s estate, to be fully compensated for the damages sustained shall
be fully preserved as outlined in subsection (a).
(c) If the self-insured employer or the employer’s insurance carrier recovers from these
other personal damages or benefits, after expenses and costs of action have been paid,
in excess of the amount of the lien as defined in this section, then that excess shall
be paid to the injured employee or, in the case of death, to the administrator of
the employee’s estate for distribution.
(d) In the event there is a dispute over the reimbursement owed or the period of suspension
going forward, the court, by agreement of the parties and upon petition by either
the employee or the employer and/or its insurance carrier, shall assign the dispute
to the workers’ compensation court’s mediation program, in accordance with the rules
and procedures established by the court. Nothing herein shall preclude any party or
attorney from pursuing any action otherwise available.
Notes of Decisions
Rison v. Air Filter Sys., Inc., 707 A.2d 675 (R.I. 1998).
· cites it 41× “settlement of a third-party tort claim arising out of his work-related injuries affect the employee’s ability to obtain a workers’ compensation award for his disfigurement and bodily loss of use? This question comes before us on a petition for certiorari seeking review of a…”
McCarthy v. Env't Transp. Servs., Inc., 865 A.2d 1056 (R.I. 2005).
· cites it 25× “As a result of the Stop & Shop judgment, on June 19, 1991, the Workers’ Compensation Court decreed that John’s weekly compensation benefits be suspended in accordance with § 28-35-58. 1 On April 14, 1993, the Workers’ Compensation Court awarded John specif *1059 ic compensation…”
Joshua Mello v. Sean Killeavy, 205 A.3d 454 (R.I. 2019).
· cites it 10× “On appeal, Mello contends that, despite the limitation on remedies contained in the exclusivity provision, G.L. 1956 § 28-35-58 allows him to bring a claim against his fellow employee for tortious acts of the coemployee that were outside the scope of employment, even after he…”
Ruggiero v. City of Providence, 893 A.2d 235 (R.I. 2006).
· cites it 9× “The hearing justice below ruled in favor of the city, holding that even though the benefits payable to Ruggiero were suspended pursuant to § 28-35-58, those benefits were nonetheless “payable.”
Boucher v. McGovern, 639 A.2d 1369 (R.I. 1994).
· cites it 4× “” Section 28-35-58 relates to the liability of a third party for damages and states in pertinent part: “Where the injury for which compensation is payable under chapters 29-38, inclusive, of this title, was caused under circumstances creating a legal liability in some person…”
Ruggiero v. City of Providence, 889 A.2d 691 (R.I. 2005).
· cites it 8× “(Payment of that amount to the city was required by § 28-35-58(a) of the act. 3 ) Later that same month, the city began to take the statutorily authorized “holiday” from its obligation to make weekly workers’ compensation payments to Ms.”
Roy v. Providence Metalizing Co., 381 A.2d 1051 (R.I. 1978).
· cites it 5× “1956 (1968 Reenactment) §28-35-58 of the Workmen’s Compensation Act (the Act) concerning third-party liability and employer indemnity does not apply to recoveries for malpractice.”
Com. Union Companies v. Graham, 495 A.2d 243 (R.I. 1985).
· cites it 5× “1956 (1979 Reenactment) § 28-35-58. 1 A reading of the record in the light most favorable to defendant reveals the following facts.”
Poulos v. Aetna Cas. & Sur. Co., 379 A.2d 362 (R.I. 1977).
· cites it 3× “Aetna argues that since an injured workman who collects under his own uninsured motorist insurance contract is not subject to subrogation under §28-35-58, 4 the public policy against double recovery is best preserved by allowing the deduction.”
Latour v. Com. Union Ins., 528 F. Supp. 231 (D.R.I. 1981).
· cites it 6× “The Act, however, does permit an employee who has received workers’ compensation to sue for damages when his injury “was caused under circumstances creating a legal liability in some person other than the employer to pay damages in respect thereof.”
Brimbau v. Ausdale Eqiupment Rental Corp., 376 A.2d 1058 (R.I. 1977).
· cites it 3× “In this case, prior to bringing suit plaintiff received workmen’s compensation payments from Marzano Construction’s compensation carrier pursuant to chapter 33 of title 28, as allowed by §28-35-58. 2 The plaintiff also received compen *19 sation payments from the “second injury…”
Colarusso v. Mills, 208 A.2d 381 (R.I. 1965).
· cites it 4× “1956, §28-35-58, as amended, which other than for the proviso is in substantially the same form as when first enacted by P.”
— R.I. Gen. Laws § 28-35-58(a) — 6 cases
Ruggiero v. City of Providence, 893 A.2d 235 (R.I. 2006).
“The hearing justice below ruled in favor of the city, holding that even though the benefits payable to Ruggiero were suspended pursuant to § 28-35-58, those benefits were nonetheless “payable.”
Ruggiero v. City of Providence, 889 A.2d 691 (R.I. 2005).
“(Payment of that amount to the city was required by § 28-35-58(a) of the act. 3 ) Later that same month, the city began to take the statutorily authorized “holiday” from its obligation to make weekly workers’ compensation payments to Ms.”
Joshua Mello v. Sean Killeavy, 205 A.3d 454 (R.I. 2019).
“On appeal, Mello contends that, despite the limitation on remedies contained in the exclusivity provision, G.L. 1956 § 28-35-58 allows him to bring a claim against his fellow employee for tortious acts of the coemployee that were outside the scope of employment, even after he…”
— R.I. Gen. Laws § 28-35-58(b) — 1 case
McCarthy v. Env't Transp. Servs., Inc., 865 A.2d 1056 (R.I. 2005).
“As a result of the Stop & Shop judgment, on June 19, 1991, the Workers’ Compensation Court decreed that John’s weekly compensation benefits be suspended in accordance with § 28-35-58. 1 On April 14, 1993, the Workers’ Compensation Court awarded John specif *1059 ic compensation…”
— R.I. Gen. Laws § 28-35-58(c) — 1 case
McCarthy v. Env't Transp. Servs., Inc., 865 A.2d 1056 (R.I. 2005).
“As a result of the Stop & Shop judgment, on June 19, 1991, the Workers’ Compensation Court decreed that John’s weekly compensation benefits be suspended in accordance with § 28-35-58. 1 On April 14, 1993, the Workers’ Compensation Court awarded John specif *1059 ic compensation…”
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