                    COURT OF APPEALS OF VIRGINIA


Present:   Judges Benton, Coleman and Willis


GLENFORD KEITH MILLER

v.   Record No. 0072-95-1                      MEMORANDUM OPINION *
                                                   PER CURIAM
HALL AUTO MALL                                    JUNE 27, 1995
AND
VADA GROUP SELF INSURED ASSOCIATION


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
            (Sidney H. Kelsey, Jr., on brief), for appellant.

            (Philip J. Infantino; Pender & Coward, on brief), for
            appellees.



     Glenford Keith Miller contends that the Workers'

Compensation Commission erred in finding that he settled a third-

party tort claim without the knowledge or consent of Hall Auto

Mall ("employer") and its insurance carrier and in ruling that

his claim was barred by Code § 65.2-309.   In the alternative,

Miller contends that the employer should receive a credit against

future compensation benefits in an amount equal to the maximum

amount the employer could have recovered from the third-party

settlement proceeds.    Upon reviewing the record and the briefs of

the parties, we conclude that this appeal is without merit.

Accordingly, we summarily affirm the commission's decision.     Rule

5A:27.

     On February 10, 1993, Miller left work and began to cross

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
the street to an employee parking lot.    He was struck by an

automobile and sustained severe injuries.   The employer filed an

Employer's First Report of Accident with the commission.

However, on June 8, 1993, the employer notified Miller that his

workers' compensation claim was denied.   On June 23, 1993, the

commission notified Miller of his rights and obligations under

the Workers' Compensation Act.

     On December 22, 1993, Miller settled his third-party

liability claim against the driver of the automobile.   Three

weeks after the settlement, Miller filed a workers' compensation

claim with the commission.   The employer defended on the ground

that Miller settled his third-party claim without notice to the

employer.   The attorney who represented Miller in his third-party

action submitted a letter to the commission stating that the

employer and insurance carrier were aware of Miller's third-party

claim and that the employer had given Miller certain wage

information on a Lost Wage Form.
     The deputy commissioner found that neither Miller nor his

attorney informed the employer's insurance carrier of the

settlement.   Although the deputy commissioner found that Miller

proved that he sustained a compensable injury by accident, he

ruled that Code § 65.2-309 barred recovery for failure to notify

the employer of the settlement.    The commission affirmed the

denial of an award.

     Code § 65.2-309(A) provides that "[a] claim against an




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employer . . . shall operate as an assignment to the employer of

any right to recover damages which the injured employee . . . may

have against any other party . . . , and such employer shall be

subrogated to any such right."    In applying this statute, we held

that "the employee may not pursue his common law remedy in such a

manner or settle his claim to the prejudice of the employer's

subrogation right and thereafter continue to receive workers'

compensation benefits."     Wood v. Caudle-Hyatt, Inc., 18 Va. App.

391, 397, 444 S.E.2d 3, 7 (1994).      Furthermore, we stated the

following:
             An employee necessarily prejudices his
             employer's subrogation rights and, thus, is
             barred from obtaining or continuing to
             receive benefits under a Workers'
             Compensation Award when an employee settles a
             third-party tort claim without notice, or
             without making a claim for workers'
             compensation benefits, or without obtaining
             the consent of the employer.


Id. (citing Stone, 184 Va. at 1060, 37 S.E.2d at 75).

     No evidence in this record proved that the employer or

carrier were given notice of the settlement prior to Miller's

filing of his workers' compensation claim in January 1994 or that

Miller attempted to obtain the employer's consent to the

settlement.    Evidence that the employer may have been aware of

Miller's third-party claim does not prove that the employer was

given an opportunity to consent to the settlement or was given

notice of the settlement.

     Miller's contention that the employer waived its subrogation



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rights when it denied his claim on June 8, 1993, is meritless.

See Wood, 18 Va. App. at 397-98, 444 S.E.2d at 7.    We also reject

his argument that the right to subrogation did not arise until he

filed his claim with the commission.   The employer's right of

subrogation "accrues upon 'the making of a lawful claim against

an employer for compensation,' [b]ut when such claim is made 'the

employer's rights, as assignee of the employee, relate back and

are the same as those of the employee at the time of the

injury.'"   Stone v. George W. Helme Co., 184 Va. 1051, 1060, 37

S.E.2d 70, 74 (1946).

     Because we find that Miller's claim was barred by Code

§ 65.2-309, we reject his alternative argument that the employer

should have received a credit against future compensation

benefits in an amount equal to the maximum amount the employer

could have recovered from the third-party settlement proceeds.

Accordingly, we affirm the commission's decision.

                                         Affirmed.




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