A. A claim against an employer under this title for injury, occupational disease, or death benefits shall create a lien on behalf of the employer against any verdict or settlement arising from any right to recover damages which the injured employee, his personal representative or other person may have against any other party for such injury, occupational disease, or death, and such employer also shall be subrogated to any such right and may enforce, in his own name or in the name of the injured employee or his personal representative, the legal liability of such other party. The amount of compensation paid by the employer or the amount of compensation to which the injured employee or his dependents are entitled shall not be admissible as evidence in any action brought to recover damages.
B. Any amount collected by the employer under the provisions of this section in excess of the amount paid by the employer or for which he is liable shall be held by the employer for the benefit of the injured employee, his personal representative, or other person entitled thereto, less a proportionate share of such amounts as are paid by the employer for reasonable expenses and attorney's fees as provided in § 65.2-311.
C. No compromise settlement shall be made by the employer in the exercise of such right of subrogation without the approval of the Commission and the injured employee or the personal representative or dependents of the deceased employee being first obtained.
D. If an injured employee, his personal representative, or a person acting on behalf of the injured employee receives the proceeds of the settlement or verdict and the employer's lien pursuant to subsection A has not been satisfied, the employer shall have the right to recover its lien either as a credit against future benefits or through a civil action against the person who received the proceeds.
E. Any arbitration held by the employer in the exercise of such right of subrogation (i) shall be limited solely to arbitrating the amount and validity of the employer's lien, (ii) shall not affect the employee's rights in any way, and (iii) shall not be held unless:
1. Prior to the commencement of such arbitration the employer has provided the injured employee and his attorney, if any, with an itemization of the expenses associated with the lien that is the subject of the arbitration;
2. Upon receipt of the itemization of the lien, the employee shall have 21 days to provide a written objection to any expenses included in the lien to the employer, and if the employee does not do so any objections to the lien to be arbitrated shall be deemed waived;
3. The employer shall have 14 days after receipt of the written objection to notify the employee of any contested expenses that the employer does not agree to remove from the lien, and if the employer does not do so any itemized expense objected to by the employee shall be deemed withdrawn and not included in the arbitration; and
4. Any contested expenses remaining shall have been submitted to the Commission for a determination of their validity and the Commission has made such determination of validity prior to the commencement of the arbitration.
Code 1950, § 65-38; 1960, c. 89; 1968, c. 660, § 65.1-41; 1991, c. 355; 2004, cc. 914, 941; 2017, cc. 81, 288.
Notes of Decisions
United Airlines, Inc. v. Hayes, 708 S.E.2d 418 (Va. Ct. App. 2011).
· cites it 16× “Although one commissioner concurred to express his opinion regarding the credibility of some of the evidence, the commission unanimously agreed that Code § 65.2-309 “mean[s] that [the commission] can determine forfeiture on a body part basis” and rejected employer’s argument…”
Liberty Mut. Ins. v. Fisher, 557 S.E.2d 209 (Va. 2002).
· cites it 44× “*82 Liberty and Windham (collectively, Liberty) filed petitions seeking to intervene in the wrongful death action based on Code §§ 65.2-309 and -310. Code § 65.2-309 provides, in relevant part: A.”
Yellow Freight Sys., Inc. v. Courtaulds Performance Films, Inc., 580 S.E.2d 812 (Va. 2003).
· cites it 24× “DISCUSSION This appeal involves the statutory scheme embodied in Code §§ 65.2-309 and 65.2-310, parts of the Virginia Workers’ Compensation Act, which together afford an employer certain rights to recover amounts paid to or on behalf of an injured employee from a third party…”
Napper v. Abm Janitorial Servs., 726 S.E.2d 313 (Va. 2012).
· cites it 12× “(A), which states: The rights and remedies herein granted to an employee when his employer and he have accepted the provisions of this title respectively to pay and accept compensation on account of injury or death by accident shall exclude all other rights and remedies of such…”
Wood v. Caudle-Hyatt, Inc., 444 S.E.2d 3 (Va. Ct. App. 1994).
· cites it 18× “Thus, the commission held that Wood was not entitled to a compensation award, including medical benefits, nor was Caudle-Hyatt required to pay its pro rata share of Wood’s reasonable expenses and attorney’s fees for the tort case, but only a fee for representing Wood before the…”
Michigan Mut. Ins. v. Smoot, 128 F. Supp. 2d 917 (E.D. Va. 2000).
· cites it 21× “See Va.Code §§ 65.2-309, -310 (1995). The Act grants the Carrier the right of subrogation.”
Henry's Wrecker Serv. Co. v. Smoot, 545 S.E.2d 551 (Va. Ct. App. 2001).
· cites it 14× “The provisions of Code §§ 65.2-309 and -310 of the Act underpin employer’s claim to reimbursement from claimant and the attendant assertion that the commission has jurisdiction to grant the requested relief.”
Overhead Door Co. of Norfolk v. Lewis, 509 S.E.2d 535 (Va. Ct. App. 1999).
· cites it 10× “They contended that Code §§ 65.2-309 and 65.2-310 provide an employer with subrogation rights when the injured employee recovers from a third party who caused the injury but that those code sections do not provide subrogation rights when the employee seeks damages from a party…”
Virginia Mun. Grp. Self-Ins. v. Crawford, 66 Va. Cir. 236 (Salem Cir. Ct. 2004).
· cites it 27× “2-309 provided in relevant part as follows: A. A claim against an employer under this title for injury or death benefits shall operate as an assignment to the employer of any right to recover damages which the injured employee, his personal representative, or other person may…”
Michigan Mut. Ins. v. Smoot, 129 F. Supp. 2d 912 (E.D. Va. 2000).
· cites it 17× “See Va.Code §§ 65.2-309, -310. Michigan Mutual’s inability to recover the monies paid the Smoots is not due to any overt malicious act by the Smoots.”
Peck v. Safway Steel Prods., Inc., 551 S.E.2d 328 (Va. 2001).
· cites it 8× “2-307 provides that the rights and remedies granted under the Act "shall exclude all other rights and remedies" of an employee or his estate at common law or otherwise.”
— Va. Code Ann. § 65.2-309(A) — 43 cases
Peck v. Safway Steel Prods., Inc., 551 S.E.2d 328 (Va. 2001).
“2-307 provides that the rights and remedies granted under the Act "shall exclude all other rights and remedies" of an employee or his estate at common law or otherwise.”
United Airlines, Inc. v. Hayes, 708 S.E.2d 418 (Va. Ct. App. 2011).
“Although one commissioner concurred to express his opinion regarding the credibility of some of the evidence, the commission unanimously agreed that Code § 65.2-309 “mean[s] that [the commission] can determine forfeiture on a body part basis” and rejected employer’s argument…”
Wood v. Caudle-Hyatt, Inc., 444 S.E.2d 3 (Va. Ct. App. 1994).
“Thus, the commission held that Wood was not entitled to a compensation award, including medical benefits, nor was Caudle-Hyatt required to pay its pro rata share of Wood’s reasonable expenses and attorney’s fees for the tort case, but only a fee for representing Wood before the…”
— Va. Code Ann. § 65.2-309(B) — 1 case
Henry's Wrecker Serv. Co. v. Smoot, 545 S.E.2d 551 (Va. Ct. App. 2001).
“The provisions of Code §§ 65.2-309 and -310 of the Act underpin employer’s claim to reimbursement from claimant and the attendant assertion that the commission has jurisdiction to grant the requested relief.”
— Va. Code Ann. § 65.2-309(C) — 7 cases
Yellow Freight Sys., Inc. v. Courtaulds Performance Films, Inc., 580 S.E.2d 812 (Va. 2003).
“DISCUSSION This appeal involves the statutory scheme embodied in Code §§ 65.2-309 and 65.2-310, parts of the Virginia Workers’ Compensation Act, which together afford an employer certain rights to recover amounts paid to or on behalf of an injured employee from a third party…”
Henry's Wrecker Serv. Co. v. Smoot, 545 S.E.2d 551 (Va. Ct. App. 2001).
“The provisions of Code §§ 65.2-309 and -310 of the Act underpin employer’s claim to reimbursement from claimant and the attendant assertion that the commission has jurisdiction to grant the requested relief.”
Wood v. Caudle-Hyatt, Inc., 444 S.E.2d 3 (Va. Ct. App. 1994).
“Thus, the commission held that Wood was not entitled to a compensation award, including medical benefits, nor was Caudle-Hyatt required to pay its pro rata share of Wood’s reasonable expenses and attorney’s fees for the tort case, but only a fee for representing Wood before the…”
Liberty Mut. Ins. v. Fisher, 557 S.E.2d 209 (Va. 2002).
“*82 Liberty and Windham (collectively, Liberty) filed petitions seeking to intervene in the wrongful death action based on Code §§ 65.2-309 and -310. Code § 65.2-309 provides, in relevant part: A.”
— Va. Code Ann. § 65.2-309(D) — 1 case
United Airlines, Inc. v. Hayes, 708 S.E.2d 418 (Va. Ct. App. 2011).
“Although one commissioner concurred to express his opinion regarding the credibility of some of the evidence, the commission unanimously agreed that Code § 65.2-309 “mean[s] that [the commission] can determine forfeiture on a body part basis” and rejected employer’s argument…”
— Va. Code Ann. § 65.2-309(E) — 1 case
— Va. Code Ann. § 65.2-309(E)(i) — 1 case
— Va. Code Ann. § 65.2-309(E)(ii) — 1 case
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