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Ask an Attorney: Workers' Comp Claims

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I was hurt in a car crash with another vehicle on my way to a work site.  A truck came out of an approach did not stop and we ran into the rear of the truck.  I recently received a letter from workers comp asking me if I was going to pursue a claim for my injuries.  I thought I was by filing the work comp claim.  Do I need to do something else as well?  If I don't will my work comp claim be denied?

There are a couple questions today that are probably best answered by describing what appears is going on in this scenario.  If you are involved in an accident at work that may be caused by a third party, someone other than your employer or a co-employee, you have a right to bring a claim against that third party even if the injury occurred while you were at work.  What the work comp carrier, WSI, in North Dakota is asking is whether the listener is intending to bring a claim against that party.

How would the workers comp carrier know if there is a claim or not?

They do not always know for certain, but in most instances, because of the forms that have been completed by the injured worker and the discussions the case workers have had with the injured workers they can make a good guess as to whether or not there is a third party claim.  The reason that the work comp carrier is looking for that possibility is because if there is a 3rd Party claim, a portion of that claim also likely belongs to the work comp carrier in what is known as a subrogation right.  So if a third party is at fault and the injured worker pursuits that claim then the work comp carrier will be reimbursed if there is a successful recovery for the benefits it may have provided to the injured worker.

Why would the injured worker want to pursue the claim if the recovery is just going to benefit the workers comp carrier?

It is not, going to just benefit the work comp carrier.  I have never in North Dakota seen that happen, and we do a lot of third party claims.  What happens typically is two things that prevent that from happening.  First, in most instances, workers comp does not fully compensate the injured worker for his losses.  Yes, medical bills are paid.  There are some loss wages, never 100%.  Some voc rehab may be paid if needed.  That is only payment for economic loss.  Non-economic loss is in a lot of instances not paid at all or if it is such as a PPI award, it is for much less than the true value of such loss.  You are not subject to the same statutory limitations in a third party claim.  You can recover the full value of your wage loss, you can recover the full value of retraining, you can recover the full value of your non-economic losses.  Second, by law in North Dakota regardless of the amount of benefits paid or the amount recovered in a 3rd Party action, workers comp's subrogation is limited to 50% of the recovery.  So even if workers comp has paid a $100,000 in benefits and your recovery is limited to $100,000 because that is all the insurance available and the 3rd party has no assets beyond the insurance policy, worker's comp's subrogation is limited to $50,000.

What happens to the injured worker's work comp claim if they pursuit the 3rd party claim?

Nothing.  Pursuing a 3rd Party claim will not have any effect on the injured worker's work comp claim.  He or she is still entitled to work comp benefits if they pursuit the 3rd party claim.  In fact, usually the work comp carrier wants the injured worker to pursuit that claim.  Obviously because they have the subrogation right if they get reimbursed for what they have paid out it is a good for them as well.

Getting back to the listener's question, then if they do get such a letter and don't pursuit the claim will it adversely impact the workers comp claim.

It should not.  The work comp claim will not be denied if they don't pursuit the claim.  Work comp is just checking to see if they are pursuing some type of claim when it appears there might be one available.  In some instances, if the injured workers does not pursuit the claim, the work comp carrier might.  I believe the law in North Dakota even would allow an employer to pursuit the claim if they wanted to have their account reimbursed.  So that is another reason letters are sometimes sent, if the injured worker isn't going to pursuit, work comp carrier may be looking to see to determine whether they may want to pursuit some claim against the third party to get back what they have paid out.

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