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Finding Fault. Successfully Identifying Workers’ Compensation Recovery Opportunities

Christopher J. Capalbo, Esq. 1 month ago || Subrogation
“Impossible under magnifying glass” by wuestenigel is licensed under CC BY 2.0. To view a copy of this license, visit: https://creativecommons.org/licenses/by/2.0

A day in the life of a workers’ compensation claims professional can be hectic to say the least. New losses that demand immediate attention come in continually. But subrogation does not have to be a thorn in the claims professional’s side. Familiarity with basic workers’ compensation subrogation fact patterns and the steps to take once they have been identified can ease this task. Let’s explore some of the usual suspects.

Subrogation Recovery Potential

Each claim brings in calls and correspondences from applicant attorneys, doctors, employers, case managers, investigators, defense attorneys, lien claimants, and injured workers. With every request for treatment and report that comes in, there are rules and hidden deadlines around every corner.

Supervisors require diary reviews, updates, and plans of action, and clients seek account audits. On top of all that, the claims professional also is responsible for identifying subrogation recovery potential for each claim.

Fact Patterns

In general, subrogation in the context of a workers’ compensation case comes in several distinct fact patterns.

Motor Vehicle Accidents.

The easiest of all fact patterns to identify with subrogation potential is a motor vehicle accident. When a report comes in that mentions an injury that was caused by a car accident, subrogation should be pursued to determine who was at fault for the accident. Securing a copy of the police report is key for this purpose.

Once the report is received, the responsible driver and owner should be put on notice of the carrier’s intent to pursue subrogation. A demand must be made for the insured to open a claim with his auto insurance carrier. A request should be made to the employer and employee for any photographs of the vehicles involved, documentation of any repairs made to the vehicles involved, and a statement made by anyone involved in the accident or who witnessed it.

Construction Site Accidents

Accidents on construction sites come in all shapes and sizes. Early identification of subrogation potential involving a construction site accident is paramount because the scene of the accident and instrumentation involved often can change quickly. Even a short delay of a week or so in getting a subrogation inquiry up and running can prejudice the chances of recovery.

Thus, when an injury comes in and the employer identifies the accident locale as a construction site, an immediate subrogation review needs to be done.

Some of the more common fact patterns with subrogation potential include injuries involving heavy machinery, scaffolding, falls from heights, materials falling and striking workers, and failures to guard against dangerous conditions.

Once subrogation potential is identified, requests should be made for witness statements, Occupational Safety and Health Administration (OSHA) reports, contractor reports, photographs of the scene, rental agreements, and job site contracts.

Premises Liability

Of all the subrogation fact patterns, these types of cases are the most often overlooked by claims professionals and insured employers alike. Subrogation potential in slip, trip, and fall scenarios often is discounted quickly on the assumption that it was nothing more than an accident caused by the injured worker not paying attention.

While contributory fault of the injured worker is a consideration in all premises liability cases, it does not mean that there is no subrogation potential. Any time an injury involves a slip, trip, fall, or some other accident caused by an encounter with a condition present on the property, the claims professional should take a moment to step back and consider whether a third party was involved in creating the condition that led to the injury.

Once identified, photographs of the condition responsible for the injury immediately should be secured.

Products Liability

These cases have the most obvious fact patterns but can be the most expensive and problematic to pursue. When an injury occurs due to an encounter with a machine, tool, or piece of equipment, subrogation should be considered.

Discussions with the employer and employee should focus on whether a defect or failure of the equipment contributed to the accident. Ofentimes these fact situations involve contributory fault of the injured worker and employer surrounding misuse of equipment or failure to train.

Nonetheless, if the scope of the injury is large, at least a basic analysis of product design or manufacturer defects should be completed.

Securing a copy of the OSHA report often can assist in the fact gathering and analysis of the issues involved. In very serious cases, an expert can be consulted early on to inspect the product. Ultimately, these cases hinge on the testimony and opinion of an expert concerning the product.

Miscellaneous Patterns

Not all subrogation fact patterns fit neatly into a category. Any time an accident occurs and you find yourself asking, “How did that happen?” it’s probably a good indication that there may be subrogation potential. Follow that intuition by asking questions of the employer and employee to determine whether a third party potentially could be involved in the cause of the injury.

If there is ever a doubt, it is better to be safe than sorry. Our attorneys can help you sort out the right questions to ask and evidence to preserve to ensure subrogation opportunities are not missed. Sometimes a phone call is all it takes.

Have a question? Reach out!

A version of this article originally appeared in Subrogator Magazine.