Submitted on Briefs Jan. 11, 1990.
T. Stevens Bliss, Danbury, filed a brief, for appellant (plaintiff).
Jason M. Dodge, Hartford, filed a brief, for appellee (named defendant).
Before DUPONT, C.J., and FOTI and LAVERY, JJ.
[21 Conn.App. 271] LAVERY, Judge.
The plaintiff appeals from a decision of the workers' compensation review division holding that the defendants, an employer and its insurance company, are entitled to a credit equal to the plaintiff's net recovery from a third party tortfeasor for injuries resulting from an industrial accident.
The facts are not in dispute. On February 27, 1979, the plaintiff, during the course of his employment, crushed the thumb of his left, nonmaster hand while working on a machine. The plaintiff received compensation benefits pursuant to the workers' compensation statutes. General Statutes § 31-291 et seq. On June 11, 1980, the plaintiff initiated a third party action against Burndy Corporation, the manufacturer of the machine he was operating at the time of his injury.
On July 7, 1980, the defendants, pursuant to General Statutes § 31-293(a),  timely
intervened in the plaintiff's third party action. On October 23, 1981, the [21 Conn.App. 272] plaintiff, the defendant employer, and the defendant insurance carrier entered into a voluntary agreement awarding the plaintiff 20.3 weeks of compensation as a specific injury award resulting from a 25 percent loss of use of the nonmaster thumb. At the time of the agreement, there was no mention of any probable future payments on account of the injury.
[21 Conn.App. 273] In September, 1984, the third party action was settled in court for the sum of $30,000, of which $2500 was paid to satisfy the defendants' lien for workers' compensation benefits paid to that point. The defendants made no claim for any probable future payments on account of the injury. The plaintiff received a net recovery of $16,556.50.
After the settlement, the plaintiff filed for additional compensation from the defendants based on an increase in the percentage of disability to his thumb. The commissioner denied any further award, finding that the employer had a continuing, offsetting lien from the settlement of the third party action. At no time Before or at the termination of the third party action did the commissioner establish an amount equal to the present worth of any probable future payments that the employer would become obligated to pay. The plaintiff appealed to the compensation review division, which affirmed the decision of the commissioner, relying on its decision in Love v. J.P. Stevens & Co., 378 CRD-7-85 (November 10, 1988). In this court's decision on the appeal from the compensation review division in Love v. J.P. Stevens & Co., 21 Conn.App. 9, 570 A.2d 1136 (1990), we recently found error. On the basis of that decision, we find error here.
In Love, as in this case, the sole issue was whether a workers' compensation commissioner has the authority to award a credit in the amount of a worker's net recovery from a third party tortfeasor, thereby relieving the employer of its obligations under the workers' compensation statutes until such a time as the worker's expenses relating to the injury exceed that credit. In Love, this court decided that the commissioner does not have that authority. Id., 13, 570 A.2d 1136.
General Statutes § 31-293(a) provides that where an employer joins an employee in an action to recover damages[21 Conn.App. 274] from a third party responsible for an injury compensable
under the workers' compensation statute, the employer's claim "shall take precedence over that of the injured employee." The statute defines the employer's claim as "(1) the amount of any compensation which he has paid on account of the injury which is the subject of the suit and (2) an amount equal to the present worth of any probable future payments which he has by award become obligated to pay on account of such injury." General Statutes § 31-293(a). It is only when the amount received from the third party exceeds the employer's claims that the employee receives anything. Love v. J.P. Stevens & Co., supra, 14, 570 A.2d 1136.
"Section 31-293 is the exclusive route for an employer to assert a claim over any portion of an employee's recovery from a third party. In Skitromo v. Meriden Yellow Cab Co., 204 Conn. 485, 489, 528 A.2d 826 (1987); our Supreme Court held that an employer must strictly comply with the procedures of § 31-293(a). In that case, the employer failed to follow the statutory mandate, and as a result, 'any right of the [employer] to the [employee's] third party recovery, including ...