Posted by Gary Burger on June 27, 2018 in Workers' Compensation
When a workplace injury occurs, an employee may have a claim to workers’ compensation. This becomes more complex when that injury was a result of a third party, not your employer.
When this occurs, you may have a workers’ compensation claim against your employer and a civil claim against the third party responsible.
This added layer to a workers’ compensation case introduces new complexities that I explored in a case I recently tried in the Illinois Court of Claims as well as in a case I mediated for a great confidential settlement.
Facts of the Case:
JD Walker was injured when an Illinois state worker pushed a large amount of snow off an overpass onto his Semi-Truck causing severe injuries to JD.
My second client, George, was injured by a defective door that cut off the tip of his finger while he was working installing the door at a location owned and operated by a third party.
JD and George both had workers’ compensation claims against their respective employers but also had civil claims against third parties who caused their injuries. This overlay of a workers’ compensation claim and a civil law suit is what makes these cases equal parts fascinating and complicated.
Cases that involve both a workers’ compensation claim and a civil suit against a third party are unique and no two cases are the same, thus it is essential that you seek legal counsel from an experienced Missouri workers’ compensation lawyer if you find yourself in this situation.
Lessons from the Law:
From JD and George’s cases, we can learn that it is important to file a report of injury with your employer if a workplace injury does occur and that you should work closely with your attorney to decide how to handle your case.
These cases are very nuanced and require an experienced lawyer to best understand how to navigate these complexities. Sometimes, I have advised my clients not to file their compensation claim. It may make sense to do this when the third party has a large amount of insurance available. In doing this, it allows my client to control their own treatment, see their own doctors, and not be limited to their employer provided medical treatment.
On the other hand, if the workers’ compensation claim is filed along with a civil suit against the third party and you receive medical treatment through the Missouri Workers Compensation system, your employer’s insurance company may place a lien on your civil case. This lien placing is known as subrogation and which is calculated using a strict formula. This means your employer’s insurance will have a claim to the rewards of your civil case.
The formula to figure out these liens under R.S.Mo. 287.150 and the Ruediger Formula:
- Total amount paid in Worker’s Compensation ___________
- Total amount paid in civil claim ___________
- Divide line 1 by line 2 and write here: ___________
- Take line 2, subtract attorney’s fees and costs – write here ___________
- Multiply line 3 times line 4 = subrogation amount owed ___________
This threatened George’s settlement. This could greatly impact your reward and is why you should consult with legal counsel before moving forward.
We are still awaiting judgement on JD’s case; however, I am looking forward to report the results of that trial when judgment is received.
Here are a few more takeaways from these cases:
- The workers’ compensation claim must be filed first
- Attorney fees are taken out of the subrogation claim and are paid from the civil claim
- The employer/insurer’s subrogation interest includes the amount paid in medical
- Any compensation for loss of consortium can be protected from subrogation
- When calculating subrogation, comparative fault must be determined by the trier of fact and a settlement for an amount less than a verdict DOES NOT annul the findings of comparative fault Kerperien v. Lumberman’s Mutual Casualty Co., 100 S.W. 3d 778 (Mo. Banc 2003)
If you have any further questions about workers’ compensation or third party claims, contact an attorney who can help.