Injured WorkerOftentimes a work injury is caused by a person who is not a co-employee of the injured worker, or by a company that does not employ the injured worker. For example, a baggage handler for American Airlines who runs onto the tarmac to add a bag to the plane is hit by a truck operated by a United Airlines employee. In that situation the injured worker receives worker compensation benefits but also has the right to sue United Airlines and its employee in the county court system seeking more in the way of money damages that what workers compensation pays. The lawsuit is referred to as a third party claim. Sometimes it is worthwhile to file such a lawsuit and other times it is not. Until November 21, 2018 the law in Pennsylvania permitted the employer and its workers compensation insurance company to file the third-party lawsuit on behalf of the injured worker whether or not he or she wanted it to be filed. They would do so in order to benefit themselves because if money is received in the third-party lawsuit, the employer and the insurance company get paid back first, and without real concern that the injured worker would receive any payment for their pain and suffering. That changed when the court decided Liberty Mutual vs. Domtar. The court decided that “… unless the injured worker assigns her cause of action or voluntarily joins the cause of action as a party plaintiff, the insurer may not enforce its statutory right to subrogation by filing an action directly against the tortfeaser. In English, this means that the power to decide whether it is worthwhile to sue a third party stays with the injured worker, not the employer and insurance company. But BEWARE. If you find yourself in this type of situation the insurance company may try to convince you that they are acting in your interests by having you give your rights to it. Don’t be fooled. Seek legal advice of your own and don’t rely on what the insurance company tells you.

The Supreme Court also decided another case that has big ramifications involving injured workers third party lawsuits. If the injured worker receives money as a result of a third party lawsuit, the employer and insurance company are entitled to “subrogation”. This is a fancy word for saying “payback”. They will be paid back a large percentage of the wage loss and medical bills paid on behalf of the worker. For example if the insurance company paid $20,000 in wage loss and $20,000 in medical bills , and the third party recovery is $100,000, after the payment of legal fees, the insurance company would be entitled to be reimbursed a large percentage of the $40,000 it spent. On top of that the law used to say that the insurance company was entitled to a credit for any amount the worker put in his or her pocket and so if medical bills continued to pile up the insurance company did not have to pay the full amount of them going forward until the credit expired. This had the effect of watering down the money a worker thought would compensate them for all the pain and suffering he or she experienced. This changed when the Supreme Court ruled on June 19, 2018 in the case of Whitmoyer vs. WCAB (Mountain County Meats). The decision was that the workers compensation insurance company can no longer assert a future credit on projected medical payments when settling a third party case. The effect of this is that the injured worker gets to keep a larger portion of the money damage recovery thereby keeping it out of the hands of the insurance company.

If you find yourself in a situation where your work injury might include a third party claim, don’t go at it alone . Always seek legal advice. And remember, we’re here to help guide you through it.