Liberty Mut. Ins. Co. v. W. Cas. & Sur. Co
In Liberty Mut. Ins. Co. v. W. Cas. & Sur. Co., 111 Ariz. 259, 260, 527 P.2d 1091, 1092 (1974), three employees received minor industrial injuries.
They were treated for their injuries, but there was extensive damage to their vision when toxic materials were left in their eyes by the treating physician.
The employees settled with the physician. The insurance carrier then claimed and the employees objected to a lien on the full amount of that settlement.
Specifically, the employees "urged that Liberty Mutual's lien did not embrace that portion of the settlement proceeds attributed to items of damage recoverable in a civil suit but not covered under workmen's compensation." 111 Ariz. at 260-61, 527 P.2d at 1092-93.
Thus at issue were the portions of the third-party recovery to which a lien would apply.
The court stated:
Larson suggests, in paragraph 72.65(d) now 112.02(5) (d), that the best solution would be amendments to third party statutes so that the employer's carrier in being reimbursed out of the malpractice damages is allowed only so much of his outlay as was caused by the malpractice and that if the judgment in malpractice segregates non-compensable and compensable items, the employer's reimbursement must come only out of that portion of the damages attributed to compensable items.
But we think this is plainly a matter for the Legislature and was so recognized by Larson when he said that the "best solution would be amendments to third party statutes ."
The Legislature has provided for a lien against the "amount actually collectible (sic)" from the third party and "the amount actually collectible (sic) shall be the total recovery less reasonable and necessary expenses including attorney's fees actually expended."
There is no principle of law short of constitutional infirmities in the statute which would permit us to set aside or ignore the express language of the Legislature. Id. at 261-62.