Injured on the Job by Someone Else: The Two-Track Recovery (Workers' Comp and a Third-Party Claim)

Published November 1, 2016 · Injury Law Basics

A warehouse worker in Vandalia is loading a trailer when an outside delivery driver backs his truck into the dock without looking. A nurse is rear-ended on the way between patient visits. An electrician falls when a general contractor's crew removes a guardrail. A machinist loses three fingers to a press whose safety guard was defectively designed.

Each of these people is hurt on the job. Each will be told, usually by a supervisor and sometimes by a claims examiner, that workers' compensation is their remedy. That is half right. Workers' comp is one track. For an injury caused by someone other than the employer or a co-worker, there is a second track, and it is the one that pays for everything comp does not.

Track one: workers' compensation

Ohio's workers' compensation system is a trade. Employers pay premiums to the Bureau of Workers' Compensation, or qualify to self-insure, and in exchange R.C. 4123.74 makes complying employers immune from lawsuits for injuries that arise out of employment. The injured worker gets benefits without having to prove anyone was at fault: medical treatment, a percentage of lost wages while off work, and scheduled awards for permanent impairment.

What comp does not pay is just as important. It pays nothing for pain and suffering. It does not replace full wages. It does not compensate the loss of a career, the inability to coach your kid's team, or a spouse's loss of companionship. For a serious injury, the gap between what comp pays and what the injury actually costs can be enormous.

The immunity also has limits. It protects the employer and fellow employees. It does not protect anyone else. (Claims against the employer itself for deliberately dangerous conduct are a separate, narrow category that I discussed in a post on Ohio's employer intentional-tort law.)

Track two: the third-party claim

A "third party" is anyone other than your employer and co-workers whose negligence caused your injury. The third-party claim is an ordinary personal-injury lawsuit, and it recovers the full measure of damages Ohio law allows: all lost wages and lost earning capacity, all medical expenses, pain and suffering, permanent impairment, and the spouse's consortium claim. I described how we document the full economic loss in an earlier post on lost wages and earning capacity.

Common third parties in the cases we see:

• Other drivers. Anyone whose work puts them on the road, from sales reps to home-health aides to delivery drivers, is covered by comp for a crash on the job and has a full claim against the at-fault driver. Our car and truck crash practice handles many of these.
• Outside truckers and delivery companies who injure dock workers, receivers and warehouse staff.
• Subcontractors and general contractors on construction sites, where the crew that created the hazard usually works for a different company than the worker who was hurt.
• Property owners who invite workers onto dangerous premises, such as a customer's store, a client's home or a landlord's building. Those cases fall under premises liability.
• Manufacturers of defective machines, tools, vehicles and safety equipment.
• Security and maintenance contractors whose failures lead to assaults, falls or equipment failures.

The two tracks run at the same time. You do not have to choose, and you should not wait for the comp claim to close before pursuing the third party. The two-year deadline for most Ohio injury claims runs from the date of injury regardless of what is happening in the comp system.

The BWC's lien: the part that trips people up

Here is where injured workers most often get hurt a second time. When the BWC or a self-insuring employer pays benefits, R.C. 4123.931 gives it a right of subrogation: the right to be repaid out of any recovery from the third party. The statute calls this the "subrogation interest," and it includes not only what has already been paid but an estimate of future benefits.

The statute is unforgiving about notice. The worker must tell the BWC (or the self-insuring employer) and, when required, the Attorney General about every third party who may be liable, and must give them a reasonable opportunity to assert the lien before any settlement is final. A settlement reached without that notice is not final, and the statute makes the worker and the third party jointly liable to pay the full subrogation interest. In other words, settle quietly with the other driver's insurer and you can end up owing the BWC the entire lien out of your own pocket.

The statute does include a formula that divides a recovery between the worker and the BWC in proportion to the worker's uncompensated damages, and it allows the parties to agree to a different, fairer split. In practice, negotiating that allocation is one of the most valuable things a lawyer does in a work-injury case. A lien that is handled well can be reduced substantially; a lien that is ignored can swallow the settlement. I wrote several years ago about how long the BWC lien can follow you, and nothing about that has gotten easier.

Why "comp is my only remedy" is such a costly assumption

Insurers for third parties benefit from the confusion. A delivery company's adjuster is happy to let an injured dock worker believe that comp is the end of it. An at-fault driver's carrier will sometimes offer a quick property-damage check and hope the worker never asks about the injury. Employers, for their part, often have no incentive to point workers toward a third-party claim and may not know the law themselves.

The result is that workers with permanent injuries routinely leave the largest part of their recovery on the table. Comp will cover the surgery. Only the third-party claim pays for the years of pain, the lost overtime, the career change, and the toll on the family.

What to do now

If you were hurt at work and anyone other than a co-worker was involved, do these things promptly:

1. Report the injury and file the comp claim. The comp benefits are yours; use them.
2. Write down who else was there. The other driver, the contractor, the equipment make and model, the property owner. Get the police or incident report.
3. Preserve the evidence. Photographs of the dock, the machine, the site. Ask that video be saved. Do not let the defective part be discarded or repaired.
4. Do not sign anything from a third party's insurer until you have talked to a lawyer. A release can end the injury claim and trigger the BWC's joint-liability rule at the same time.
5. Call early. The deadlines, the lien, and the evidence all favor the side that moves first.

What this means for you

Workers' compensation is the floor, not the ceiling. If someone outside your company caused your injury, Ohio law gives you a second claim for the losses comp never covers, and the BWC's lien is a problem to be managed, not a reason to give up. Our personal injury practice handles third-party work-injury cases throughout the Dayton area, and we coordinate with your comp claim rather than competing with it.