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In re Thomas11/12/1999
extent there was any ambiguity in connection with this lien, it was only as to its exact amount, but not as to its existence.
In workers' compensation cases, for the statutory lien to apply, the claimant must have been awarded benefits under a compensation order filed with the Mayor. D.C. Code ยง 36-335 (b) (1997 Repl.). In this instance, Holmes never received benefits under a workers' compensation order. Rather, the workers' compensation claim was settled before a hearing was held.
Nonetheless, our law recognizes that a workers' compensation insurer has an equitable lien on the recovery from a third party tortfeasor. See Washington Metro. Area Transit Auth. v. Reid, 666 A.2d 41, 44 (D.C. 1995); Travelers Ins. Co. v. Haden, 418 A.2d 1078, 1081 (D.C. 1980). "The insurer is subrogated to the `employer's implied right of reimbursement out of an employee's third party recovery.'" Haden, supra, 418 A.2d at 1081 (quoting Petition of Sheffield Tankers Corp., 222 F.Supp. 441, 443 (N.D.Cal. 1963)). The insurer protects this subrogation right either through direct intervention in the third party tort action, or by notification to the third party. Id.
Here, the Hearing Committee concluded that there was support in the record that the settlement of the workers' compensation claim involved a waiver of the insurer's statutory lien, and that therefore INA's entitlement to a lien against the settlement proceeds from Hilton was not established by clear and convincing evidence. A waiver, however, is the unilateral, voluntary and intentional relinquishment of a known right. See Embassy of Benin v. District of Columbia Bd. of Zoning Adjustment, 534 A.2d 310, 323 (D.C. 1987); Bailey v. Greenberg, 516 A.2d 934, 939 n.5 (D.C. 1986). See also Government Employees Ins. Co. v. Group Hospitalization Medical Servs., Inc., 589 A.2d 464, 466 (Md. 1991). A waiver can involve conduct that "warrants an inference of the relinquishment of such right." Food Fair v. Blumberg, 200 A.2d 166, 176 (Md. 1964).
There is a factual issue in this case concerning waiver of INA's claimed statutory lien against the settlement proceeds from Hilton. The existence and amount of the lien need not be resolved at this time. Restitution of any amount which is to be owed by Thomas to INA is a factor that should be considered in Thomas' reinstatement petition.
V. Conclusion
We approve the recommendations of the Board.
The respondent, Gregory L.A. Thomas, is hereby disbarred from the practice of law in the District of Columbia, effective thirty days from the date of this opinion. The determination as to whether restitution is owed should be deferred until Mr. Thomas files a petition for reinstatement.
So ordered.
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