NC Workers' Comp Attorney Discusses Claims Against Third Parties


We have discussed in another library item the fact that a North Carolina injured worker may not sue their employer or a co-employee for injuries or occupational diseases which arise out of and in the course and scope of employment. The injured worker's only remedy against the employer for workers' compensation injuries is through the North Carolina Industrial Commission.

If a worker is injured as a result of the negligence of someone who is not employed by the same employer as the worker, the injured worker may sue that negligent party. Lawyers refer to this as a "third party claim."

The "third party" is any person who is not employed by the same employer as the injured worker.

The injured worker could therefore have two separate and distinct claims arising out of the same accident. The most common example of two claims arising out of the same accident involves the use of motor vehicles.

One example would be for instance when a delivery person for UPS is injured while driving the delivery truck by the negligence of another driver who is not employed by UPS. In that case the delivery person would have a claim against his employer because he was injured by accident arising out of and in the course and scope of his employment. The delivery person also has a claim against the negligent driver for negligence in operating a motor vehicle which caused the delivery person's injury.

This claim against the negligent driver can be brought in state court. The claim can be tried by jury and the injured worker can recover his full damages, including pain and suffering from the negligent driver.

When such claims arise, the injured UPS delivery person should consult with an experienced North carolina workers' compensation lawyer to determine how to proceed on both of these claims.

If the injuries are serious enough that the UPS delivery person is out of work for an extended period of time, a workers' compensation claim should be filed. The advantage of the workers' compensation claim is that it is usually paid quickly so that weekly workers' compensation payments can assist the injured worker and his family while he is out of work. In addition, the employer will pay all medical expenses. This relieves the worker from paying any deductible or co-pay on his health insurance.

While the advantage of making a claim under the workers' compensation system is that claims are usually paid quicker, the disadvantage is that the amount of recovery is limited.

The advantage of the third party claim for negligence brought in state court is that the worker can collect full damages including recovery for pain and suffering. The disadvantage is that such claims usually take much longer, especially to resolve a case of a significant injury.

In most cases it is advantageous to make both claims simultaneously. By doing so the worker will usually receive workers' compensation payments quickly while pursuing the third party claim.

In accidents involving less severe injuries wherein the injured worker does not miss work, the better course is usually to forego the workers' compensation claim and proceed only with the third party claim. This is especially true if the worker has health and hospitalization insurance to cover medical bills.

Most health and hospital insurance policies have a provision which excludes payment for medical treatment incurred as a result of a workers' compensation injury. However, if no workers' compensation claim is made, it is usually not a problem to collect small medical bills from the health insurance carrier.

The employer has a right to collect out of any proceeds from a third party claim the amount which the employer paid as workers' compensation benefits to the injured worker. This is known in law as a right of subrogation. The employer's right of subrogation is a large factor in determining whether it makes sense to bring a workers' compensation claim for minor injuries. Any money that is paid by workers' compensation insurance will be deducted from the third party recovery and paid to the  employer or its workers' compensation carrier.

With respect to greater injuries, however, the employer's right to subrogation should not weigh against the decision to file both claims simultaneously.

The state court judge has the discretion to eliminate or reduce the workers' compensation subrogation lien. A trial judge would be more likely to reduce or eliminate the subrogation lien if the employee's injuries are severe and if the injured worker is unable to recover from the third party an amount to fully compensate for the injuries.

An experienced workers' compensation lawyer should be consulted to assist the injured worker in making decisions involving third party claims.