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32.0669 Recovery against third person.

Cite as [A.S.C.A. § 32.0669]

(a) If an individual entitled to such compensation determines that some individual other than the employer or an individual or individuals in his employ are liable in damages, he need not elect whether to receive such compensation or to recover damages against such third person, but acceptance of compensation under an award in a compensation order operates as an assignment to the employer of all rights of the individual entitled to compensation to recover damage against such third person unless such individual commences an action against such third person within 6 months after such award.

(b) Payment under 32.0516 operates as an assignment to the employer of all rights of the legal representative of the deceased to recover damages against such third person. The employer may either institute proceedings for the recovery of such damages or may compromise with such third person either without or after instituting proceedings. Any amount recovered by such employer on account of such assignment, whether or not as the result of a compromise, must be distributed as follows:

(1) The employer retains an amount equal to:

(A) the expenses incurred by him in respect to such proceedings or compromise, including a reasonable attorney’s fee as determined by the commissioner;

(B) the cost of all benefits actually furnished by him to the employee under 32.0619;

(C) all amounts paid as compensation;

(D) the present value of all amounts thereafter payable as compensation, such present value to be computed, in accordance with a schedule prepared by the commissioner, and the present value of the cost of all benefits thereafter to be furnished under 32.0619, to be, estimated to be retained by the employer in a trust fund to pay such compensation and, the cost of such benefits as they become due, and to pay any such final remaining in excess thereof to the individual entitled to compensation or to the representative.

(2) The employer pays any excess to the individual entitled to compensation or to the representative, less 1/5 of such excess, which shall belong to the employer.

(c) If the individual entitled to compensation, institutes proceedings within the period prescribed in subsection (a), the employer is required to pay as compensation under this chapter a sum equal to the excess of the amount which the Commissioner determines is payable on account of such injury or death over the amount recovered against such third person.

(d) If a compromise and settlement is made with such third person by the individual entitled, to compensation or by his representative, in an amount less than the compensation to which such individual or representative would be entitled under this chapter, the employer is liable for compensation as determined in subsection (c) only if such compromise is made with his written approval.

(e) Where the employer is insured and the carrier has assumed the payment of the compensation, the carrier shall be subrogated to all rights of the employer under this section.

(f) The right to compensation or benefits under this chapter shall be the exclusive remedy to an employee when he is injured, or to his eligible survivors or legal representative if he is killed, by the negligence or wrong of any other individual or individuals in the same employ; provided, that this provision shall not affect the liability of an individual other than an officer or employee of the employer.

History: 1967, PL 10-15.

Case Notes:

Accepting a Workmen's compensation award in a compensation order assigns to the employer all rights to recover damages against a third person, unless the workman commences an action against the third person within six months after such award. A.S.C.A. § 32.0669. Patau v. Rosendahl Corp., 19 A.S.R.2d 80 (1991).

A voluntary payment of Workmen's compensation does not constitute an "award in a compensation order," which triggers an assignment of an injured worker's cause of action against a third party to his employer. A.S.C.A. § 32.0669. Patau v. Rosendahl Corp., 19 A.S.R.2d 80 (1991).

The Workmen's compensation statute limits an employer's liability to pay compensation to the amount which the Commissioner determines is payable over the amount the employee recovered against a third person, and an employer may maintain an action against the employee for any overpayment. A.S.C.A. § 32.0669(c). Etimani v. Samoa Packing Co., 19 A.S.R.2d 1 (1991).