2018 Ohio 1481
Ohio2018Background
- Loretta Verlinger was seriously injured on August 1, 2011, and applied for BWC benefits on August 17, 2011.
- BWC initially disallowed her claim on September 6, 2011; Verlinger appealed to the Industrial Commission on September 22, 2011.
- While the BWC denial was under appeal, Verlinger settled with Metropolitan (third-party tortfeasor’s insurer) and Foremost (her own insurer) on December 15, 2011, without notifying BWC.
- On December 23, 2011, the Industrial Commission allowed Verlinger’s workers’ compensation claim and BWC began paying benefits.
- BWC sued under R.C. 4123.931 to recover its subrogation interest; the trial court granted summary judgment for Verlinger, the court of appeals affirmed, and the Ohio Supreme Court granted review.
- The Supreme Court held Verlinger was a “claimant” under R.C. 4123.931(G) at the time of settlement and that failure to notify BWC made Verlinger and the insurers jointly and severally liable for BWC’s subrogation interest; the appellate judgment was vacated and the case remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a "claimant" under R.C. 4123.931(G) includes someone whose BWC claim was disallowed but appealed | BWC: "claimant" means any person eligible to receive benefits; eligibility begins at time of work-related injury and continues unless a final determination of ineligibility | Verlinger: not a claimant while BWC disallowed the claim; thus R.C. 4123.931(G) notice requirement did not apply at settlement | Court held claimant = person eligible for benefits; eligibility exists from work-related injury and continues until a final adverse determination or expiration of filing period, so Verlinger was a claimant at settlement |
| Whether BWC must have paid benefits before possessing subrogation rights enforceable against settlees | BWC: subrogation right is automatic upon the statutory scheme; payment is not required to be a statutory subrogee entitled to notice and recovery | Verlinger/insurers: BWC had not paid at time of settlement, so no enforceable subrogation interest against them | Court held payment is not a prerequisite; the statutory subrogee status and automatic subrogation right exist regardless of prior payments |
Key Cases Cited
- State v. Pariag, 137 Ohio St.3d 81 (Ohio 2013) (statutory interpretation reviewed de novo; words read in context)