|
U.S. Code as of:
01/19/04
Section 933. Compensation for injuries where third persons are liable
(a) Election of remedies
If on account of a disability or death for which compensation is
payable under this chapter the person entitled to such compensation
determines that some person other than the employer or a person or
persons in his employ is liable in damages, he need not elect
whether to receive such compensation or to recover damages against
such third person.
(b) Acceptance of compensation operating as assignment
Acceptance of compensation under an award in a compensation order
filed by the deputy commissioner, an administrative law judge, or
the Board shall operate as an assignment to the employer of all
rights of the person entitled to compensation to recover damages
against such third person unless such person shall commence an
action against such third person within six months after such
acceptance. If the employer fails to commence an action against
such third person within ninety days after the cause of action is
assigned under this section, the right to bring such action shall
revert to the person entitled to compensation. For the purpose of
this subsection, the term "award" with respect to a compensation
order means a formal order issued by the deputy commissioner, an
administrative law judge, or Board.
(c) Payment into section 944 fund operating as assignment
The payment of such compensation into the fund established in
section 944 of this title shall operate as an assignment to the
employer of all right of the legal representative of the deceased
(hereinafter referred to as "representative") to recover damages
against such third person.
(d) Institution of proceedings or compromise by assignee
Such employer on account of such assignment may either institute
proceedings for the recovery of such damages or may compromise with
such third person either without or after instituting such
proceeding.
(e) Recoveries by assignee
Any amount recovered by such employer on account of such
assignment, whether or not as the result of a compromise, shall be
distributed as follows:
(1) The employer shall retain 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 deputy commissioner or Board);
(B) the cost of all benefits actually furnished by him to the
employee under section 907 of this title;
(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 Secretary, and the present
value of the cost of all benefits thereafter to be furnished
under section 907 of this title, to be estimated by the deputy
commissioner, and the amounts so computed and estimated to be
retained by the employer as a trust fund to pay such
compensation and the cost of such benefits as they become due,
and to pay any sum finally remaining in excess thereof to the
person entitled to compensation or to the representative; and
(2) The employer shall pay any excess to the person entitled to
compensation or to the representative.
(f) Institution of proceedings by person entitled to compensation
If the person entitled to compensation institutes proceedings
within the period prescribed in subsection (b) of this section the
employer shall be required to pay as compensation under this
chapter a sum equal to the excess of the amount which the Secretary
determines is payable on account of such injury or death over the
net amount recovered against such third person. Such net amount
shall be equal to the actual amount recovered less the expenses
reasonably incurred by such person in respect to such proceedings
(including reasonable attorneys' fees).
(g) Compromise obtained by person entitled to compensation
(1) If the person entitled to compensation (or the person's
representative) enters into a settlement with a third person
referred to in subsection (a) of this section for an amount less
than the compensation to which the person (or the person's
representative) would be entitled under this chapter, the employer
shall be liable for compensation as determined under subsection (f)
of this section only if written approval of the settlement is
obtained from the employer and the employer's carrier, before the
settlement is executed, and by the person entitled to compensation
(or the person's representative). The approval shall be made on a
form provided by the Secretary and shall be filed in the office of
the deputy commissioner within thirty days after the settlement is
entered into.
(2) If no written approval of the settlement is obtained and
filed as required by paragraph (1), or if the employee fails to
notify the employer of any settlement obtained from or judgment
rendered against a third person, all rights to compensation and
medical benefits under this chapter shall be terminated, regardless
of whether the employer or the employer's insurer has made payments
or acknowledged entitlement to benefits under this chapter.
(3) Any payments by the special fund established under section
944 of this title shall be a lien upon the proceeds of any
settlement obtained from or judgment rendered against a third
person referred to under subsection (a) of this section.
Notwithstanding any other provision of law, such lien shall be
enforceable against such proceeds, regardless of whether the
Secretary on behalf of the special fund has agreed to or has
received actual notice of the settlement or judgment.
(4) Any payments by a trust fund described in section 917 of this
title shall be a lien upon the proceeds of any settlement obtained
from or judgment recorded against a third person referred to under
subsection (a) of this section. Such lien shall have priority over
a lien under paragraph (3) of this subsection.
(h) Subrogation
Where the employer is insured and the insurance carrier has
assumed the payment of the compensation, the insurance carrier
shall be subrogated to all the rights of the employer under this
section.
(i) Right to compensation as exclusive remedy
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 representatives if he is killed, by the
negligence or wrong of any other person or persons in the same
employ: Provided, That this provision shall not affect the
liability of a person other than an officer or employee of the
employer.
|
|