Is Workers’ Comp My Only Remedy?

Do you have a worker’s compensation injury that resulted from or included a motor vehicle accident, medical malpractice, or faulty product/equipment? If so, you may ask if workers’ compensation is your only remedy to recover monies under the law. The answer is no.

This is called a third party claim.  That is, you can file two separate claims and recover for both if the claim is against someone other than your employer.  However, the workers’ compensation insurer has the right of  subrogation which is the right to seek benefits from a third party (ie the other driver, the medical provider and/or the manufacturer of the product/equipment) for the amounts they paid under WC.

In the case of your third party claim, you have up to two years to file suit in the civil courts against the third party and unlike a workers’ compensation claim, in civil court you can also seek compensation for pain and suffering related to your injuries. Once a suit has been filed, the Employer and/or Insurance company have the right to intervene in the suit to recover monies paid to you or on your behalf under your workers’ compensation claim. However, if you do not file within the first year, the Employer and/or Insurance company have the right to file suit on their own. If the Employer/Insurer files suit, they must notify you that they have filed suit at which time you can intervene in their suit.

In subrogation, the Employer/Insurer are seeking to recover monies which they have paid out to you personally as disability benefit and/or death benefits as well as medical expenses paid as a result of your workers’ compensation claim. Which means that if you reach a settlement in your civil suit, the Employer/Insurer are seeking to recover the money from your settlement. However, with a civil suit, the Employer/Insurer have the burden of proof to show that you have been fully and completely compensated for your injuries in order to seek recovery from your personal injury lawsuit. What does fully and completely compensated mean? Simply it means that the Employer/Insurer have to prove that you have been compensated for all economic and non-economic losses you suffered as a result of your work injury. This is very difficult to prove.  Most often, the WC insurer cannot meet this burden and cannot reover.  That is, you can recover for both claims.

We work with a network of attorneys and can help with your third party claim.   If you have been injured as the result of car accident, medical malpractice or defective product/machinery, call us and let us help you with your workers’ compensation and third-party claims.