Peterkin v. Industrial Commission

TURSI, Judge,

dissenting.

I respectfully dissent.

The statute involved here is § 8-52-108(1), C.R.S., which reads in pertinent part:

“If the injured employee elects to proceed against such other person, the ... insurance carrier ... shall contribute *1357only the deficiency, if any, between the amount of the recovery against such other person actually collected and the compensation provided by said articles in such case.” (emphasis added)

In this matter, the claimants actually collected $55,601.96. Contrary to the carrier’s contention, the statute does not refer to “gross” recovery. Thus, I would follow the wording of the statute and construe the carrier’s rights to set-off to be limited to the sum “actually collected” by the claimants, and would rule that it is allowed to suspend benefits only to that extent. See 2A A. Larson, Workmen’s Compensation Law § 74(a)(3) (1983).

Although it would have been better practice for the attorneys for claimants to have sought written approval of the carrier before permitting claimants to settle their claim against the third party, the failure to do so does not per se cause a forfeiture of costs reasonably incurred in pursuit of the claim. To charge the widow and children of the decedent with costs that were reasonably incurred and which inure to the benefit of the carrier is inconsistent with the basic purpose of the Workmen’s Compensation Act.

The Act must be given a liberal construction to effectuate its remedial and beneficent purposes. Martin Marietta Corp. v. Faulk, 158 Colo. 441, 407 P.2d 348 (1965). Further, it is a basic rule of statutory construction that in enacting a statute, it is presumed a just and reasonable result is intended. Section 2-4-201, C.R.S. I would therefore set aside the order and remand this matter to the Industrial Commission to determine what costs, including attorney fees, were reasonably incurred by claimants in settling their claims. The amount reasonably incurred should not be charged as an amount actually collected by the claimants.

I leave to another day the question of whether the benefits paid by the carrier have priority over elements of damages not covered by such benefits.