The intersection of Workers Compensation claims with 3rd party claims against the at fault person arising from the scene incident. A great number of injuries occur while the tort victim is on the job. While the Workers compensation act bars claims against employers, and co-employees it does allow a claim against an at fault person or entity arising from the same incident. Unfortunately the act allows an assessment of percentage of fault against the employer or co-employee and that time reduce any recovery against the third party defendant which is the at fault person or entity. It is only when an employer is not insured for workers compensation where an injured employee who was injured on the job has a real choice as to whether to make a workers’ compensation claim or sue the employer or co-employee. This is the case because the purpose of the workers compensation act was to provide compensation to employees injured in the course of their employment and protect the employer from being sued. The act restricted the common law system of liability and provided a substitute a no fault compensation system. The employers’ insurance company assumes the responsibility for the work related injury irrespective of fault and therefore gets immunity from any law suits against them by an injured employee. The immunity is so strong that in a case where an employee was raped as she walked to the employer provided cafeteria during her lunch break both the employer and co-employee who assaulted her were immune from suit.
In cases brought against a third party who is at fault for the incident and who was not a co-employee the workers compensation insurance company has to be paid back any benefits it paid out in connection with the workers compensation claim arising from the same incident. Lawyers at the Mintz Law Firm however experienced in negotiating these claims of workers compensation insurance carriers and getting them to reduce the amount they demand in connection with any settlement of the tort liability claim against the third party. This is a critical area that should be exploited to put more money in the clients’ pocket. The workers compensation insurance company has to reduce its claim by the percentage that the injured employee is paying his lawyer to pursue the third party defendant, ie the at fault person. In addition, the workers compensation insurance company’s claim only covers any economic costs that is paid by the at fault person liability insurance carrier to the plaintiff. Therefore, amounts received in a jury verdict for pain and suffering for example would not be subject to the workers compensation carriers claim. By structuring a settlement that is reasonable but that specifies which amounts are going to what damages whether economic or not economic the claim can be further negotiated down.
If you have been injured while in the course of your employment contact us and we will discuss this with you further.