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House of Representatives
Session of 2021 - 2022 Regular Session


Posted: March 2, 2021 10:03 AM
From: Representative Eric Davanzo
To: All House members
Subject: Workers' Compensation - Whitmoyer Remedy
I am preparing to introduce legislation that would clarify that Workers' Compensation Act in light of the Supreme Court's ruling in Whitmoyer v. WCAB (mt. Country Meats).

Our workers' compensation system is set up as a no-fault system, so an injured worker can receive compensation for a workplace injury without having to prove fault on the part of the employer.  In cases where the actions of a third party cause the workplace injury, the third party may be sued for its liability.  If a recovery is made from such a third party, the law provides that an employer who has paid compensation is entitled recoup the amount of workers' compensation benefits paid from the amount recovered from the third party.  When the award from the third party exceeds the amount of workers' compensation benefits paid, the excess amount goes to the claimant, but is treated as an advance payment on future "installments of compensation" from the employer.

Due to the use of the word "installments," the court ruled in Whitmoyer that the employer can only receive credit for future wage loss benefits (which are paid in installments) - but not future medical benefits (which are paid as medical costs are incurred).  This caused his injury AND still require his employer to continue paying his medical costs.

As a matter of principle, an employer should not be responsible for the cost of workers' compensation benefits until the cost of benefits exceeds the amount recovered from the third party who caused the injury.  To prevent the possibility of 'double dipping' in these situations, my legislation would simply clarify the law to provide an employer credit for all future compensation.

I hope that you will join me by cosponsoring this legislation.

Introduced as HB922