Subrogation – How Your Ohio Worker’s Compensation Claim Can Take Money Away from Your Personal Injury Claim
Posted on Tuesday, June 20th, 2017 at 7:54 am
The following post is part of our Law Student Blog Writing Project, and is authored by Ian Fasnacht, a law student from Ohio State University Moritz College of Law.
Worker’s Compensation allows employees to recover medical expenses and lost wages for injuries that occur on the job. When employees are injured on the job by a third-party, the Bureau of Worker’s Compensation (BWC) may file a subrogation claim. Subrogation provides the BWC or a self-insured employer with the right to collect back costs of the worker’s compensation claim from the third-party who caused the injury if the injured employee receives a settlement or judgment from a third party.
This blog post is about Ohio Worker’s Compensation claims. If you have a Kentucky Worker’s Compensation claim that is also a personal injury claim – such as getting into a car accident while on the job – check out this subrogation blog post to find out more about the Kentucky system.
How Ohio’s Worker’s Compensation Subrogation Works
In Ohio, car accidents or construction projects are the leading causes of subrogation claims. For example, consider when an employee is stopped at a red light while driving his/her company’s car and is hit from behind. The employee files a worker’s compensation claim and receives lost wages and medical expenses. The Ohio BWC has the right to recover the lost wages and the medical expenses from the third-party who hit the employee from behind, if the injured employee sues the third-party who hit him/her. If the employee sues the third-party driver for medical expenses and lost wages, the Ohio BWC has the right to recover the expenses the Ohio BWC already paid, and the employee keeps any additional amount recovered.
Money recovered from a third-party is not automatically subject to subrogation. Rather, injured employees must be given the chance to demonstrate the money he/she received from a third-party was not for the same expenses already paid through worker’s compensation.
Unlike other civil actions brought against third parties, subrogation has a six-year statute of limitations. Typically, the statute of limitations is two years for actions brought against third parties.
The Ohio Subrogation Claim Process
In Ohio, subrogation claims begin with a referral – usually from a BWC claims service specialist. Once the referral is reviewed, Ohio BWC employees will mail a letter asserting a claim against all third parties. The BWC asserts a claim by placing a lien – or right of first access – to all money the injured employee receives from the third-party. If the third-party and the injured employee settle their dispute outside of court, the Ohio BWC will negotiate the settlement with the injured employee.
Ohio statutes limit the amount the Ohio BWC may recover to the amount of money the Ohio BWC has paid or is expected to pay due to the injury. If the settlement is less than the amount the Ohio BWC has paid then the Ohio BWC and the injured employee will negotiate a settlement. If agreed, the Ohio BWC will receive its portion and the injured party will receive the remaining amount. When negotiating a settlement, the Ohio BWC considers what expenses were paid through the settlement. Usually, the Ohio BWC is only able to recover a portion of its full lien if the settlement is less than it previously paid in worker’s compensation benefits.
If the claim remains unresolved, it may be referred to mediation. If mediation fails, the Ohio BWC gives all claims to the attorney general’s office.
Ohio’s Process is Slightly Different for Self-Insured Employers
Self-insured subrogation cases must often arise in construction projects when a subcontractor’s employee is injured. If the general contractor is self-insured, it is the employer of all employees, including subcontractors, for worker’s compensation purposes. Therefore, an employee of a subcontractor can recover against the general contractor, and any funds received by the employee would be subject to subrogation by the Ohio BWC.
An injured employee could also sue the subcontractor, which would be subject to subrogation. However, under Ohio law, a subcontractor is not liable for claims of employees of other subcontractors working on the same general project provided the claim would fall under worker’s compensation law. Subcontractors may still be liable for actions that do not fall under worker’s compensation, such as an employee dropping construction equipment on another subcontractor’s employee.
Should You Talk to a Lawyer about Subrogation Between Workers’ Compensation and Personal Injury Claims?
There can often be offsets to the subrogation rights that the Bureau of Worker’s Claims recognizes, which means you can keep more of your personal injury settlement or judgment than you might first realize. However, many of the important things done to create an offset are done before the settlement of either the personal injury or the worker’s compensation claims. Therefore, it is important to talk to an attorney early. By retaining an attorney early, you maximize your chances of keeping your money.
However, not all attorneys are created equal. Make sure the attorney you hire works in a firm that practices in both personal injury and workers’ compensation. A lack of experience in either field could limit the attorney’s understanding of subrogation issues. Further, you should sit down with your attorney and ask the attorney what possibilities exist for limiting the Bureau of Worker’s Compensation’s subrogation rights. Although the attorney will not be able to give specific numbers at the beginning of the case, he or she should have the ability to explain the basic avenues that he or she will use to try to limit what you have to pay in subrogation. And if the attorney won’t take the time to sit down and explain things to you, that is probably not the attorney you want to use.
If you’ve been injured and have either a personal injury or a worker’s compensation claim, please call one of our attorneys for a free consultation. We’re Working Hard for the Working Class, and we want to help you!