County Superior Court
Plaintiff: Ronald J. Resmini, Esq.
Defendant: Matthew D. Kelly, Esq.
Interested Party: Dennis M. Teravainen, Esq.
matter came on for hearing on February 22, 2018 on the
Intervenor's motion to enforce a workers'
Hinger was injured at her employment in May 2010. After
initiating a Workers' Compensation claim, payments were
issued to her for $39, 078.28 by the workers'
compensation insurer, Hartford Insurance. Workers'
compensation awards do not normally pay for pain and
suffering, and the statute specifically reserves to injured
employees their right to pursue damages against third
parties, other than the employer. G.L. 1956 §
28-35-58(a). Therefore, Ms. Hinger proceeded against W.A.N.P.
for her remaining damages. Hartford Insurance intervenes in
this action to claim a lien and protect its right to recover.
her workers' compensation was resolved, Ms. Hinger filed
suit against W.A.N.P. for injuries she received as a business
invitee. Arbitration was requested in 2014 and eventually was
completed in 2017. In January 2017, the arbitrator issued a
written decision which, to the arbitrator's credit,
specifies the percentages of liability and itemizes the
damages: medical bills, disability compensation, and the
like. He specifically excluded certain requested damages and
treatment bills. Ms. Hinger was awarded $20, 000 plus
interest and costs by the arbitrator. After the arbitration
award, the attorneys continued to negotiate settlement, and
Ms. Hinger was paid a larger amount by W.A.N.P. to settle
Insurance claims that the awards and percentages in the
arbitrator's award should be applied to the new agreed
settlement amount to determine the amounts due Hartford
Insurance. Ms. Hinger claims that Hartford Insurance is only
entitled to 20% of the settlement monies, as Ms. Hinger was
obviously compensated for pain and suffering, but the
arbitrator found her 80% at fault. The statute simply
indicates that the insurer is entitled to recover, but does
not reflect how the amount should be
each party alleges that this is an unsettled area of state
law, this issue was well-handled in Vellucci v.
Miller, 989 F.Supp.2d 211 (D.R.I. 2013). Judge McConnell
first recognized that some of the settlement funds may have
been for pain and suffering, so "[o]ne cannot be
reimbursed for something that it did not pay."
Vellucci, 989 F.Supp.2d at 215. Judge McConnell
"Simply put, Mr. Vellucci's third-party recovery
includes compensation to him for 'pain and suffering'
due to his injury as well as 'unreimbursed lost wages
beyond the 66 2/3 Mr. Vellucci received as weekly indemnity
benefits.' (ECF No. 15 at ¶ 8.) His compensation
from the workers' compensation insurer did not include
those damages; therefore, under the plain language of the
§ 28-35-58 Ohio Casualty is not entitled to
reimbursement of 100% of the $150, 000 recovery Mr.
Vellucci received in settlement from two of the third-party
defendants. However, Ohio Casualty is entitled to some
portion of that amount under the statute because the
settlement did include compensation for 'medical bills
and indemnity benefits.' Id.; id. at ¶ 4. A
trier of fact must determine the appropriate apportionment if
the parties cannot otherwise agree." Id. at 216
(footnotes excluded). .
Hartford Insurance has a lien on the proceeds of the
settlement. However, the Court cannot determine how the
amount of the lien or its payoff should be calculated. The
Court cannot extrapolate from the non-binding arbitration
which settlement funds went to which element of damages-the
parties settled for a different amount than the arbitration
award. A hearing is needed before a finder of fact.
Accordingly, the Intervenor's motion to enforce is
granted, but the parties shall schedule a hearing before a
finder of fact to determine the amount of the lien.