Don’t miss out on your chance for payback!
Often times Employers and Insurance Carriers miss the chance to recover from other parties responsible for the employee’s injury/accident. The right to recover extends to those benefits already paid to the employee, as well as to future benefits. Consider this if the work accident was a car accident, the building the injury occurred in was owned by a third party, or possibly the employee was directly attacked by another while on the job, among many other possibilities.
Know your timeline
The wrong do-er or party at fault mentioned above is referred to as a “tortfeasor”. The right to sue the tortfeasor remains with the Employee at all times. However, if within the first year following the date of accident, the employee does not sue the tortfeasor, the Employer/Carrier obtains the right to sue. This right to sue only remains with the Employer/Carrier during the second year. Therefore, this timeline becomes important as the closing of the second year approaches and no action has been taken.
The only requirement is that the Employer/Carrier provide 30 days notice to the employee that they plan on bringing suit. After 30 days, the Employer/Carrier may initiate suit. Once the second year is up, the right to sue reverts back to the employee and remains that way.
When suit is filed by the Claimant against the tortfeasor, the employer or insurance carrier should file a formal Notice of Lien in the third party claim. This formal notice is a clear cut way of ensuring all parties were notified of the Employer/Carrier’s right to recovery against any judgment or settlement the Claimant may obtain.
When suit is not yet filed, Notice shall be sent by certified mail to the Claimant’s personal injury attorney as well as the tortfeasor’s insurance carrier. In the absence of knowing the Claimant’s personal injury attorney or tortfeasor’s insurance carrier, it may be necessary to send notice directly to the Claimant and tortfeasor. This notice should directly request immediate notification to their representation or insurance company for further action.
Once notice is provided, continue to follow up until settlement is reached or formal suit is filed in which you can file a formal Notice of lien.
Keep in mind – future offsets and reduction of lien
In cases where an Employee has not yet received benefits, not yet filed a workers’ compensation claim, or in cases where the Employee is currently still receiving workers’ compensation benefits, the recovery from any third party shall offset future benefits. The amount of offset shall be reduced by court costs to prosecute the third party claim as well as reasonable attorney’s fees expended by the Claimant. (Fla Stat. 440.39(2))
In determining the percentage that the employer/carrier will obtain, the court or parties will reduce the amount owed by court costs and fees expended in the third party action. On top of that reduction, if the Claimant does not recover full value of what his/her case is argued to be worth the Employer/Carrier will be expected to take another reduction to their lien.
The formula for easy calculation of determining recovery likely due is:
settlement amount of third party claim (-) attorney’s fees and costs (/ divided by) the total value of the employee’s claim. The number you obtain shall then be multiplied by the total of the workers compensation lien. The final amount is the amount the employer or carrier can expect to recover or demand.
Although seemingly a daunting task, the recovery obtained through third party actions is worth the time! Don’t miss out on recovery you may be entitled to, start investigating today!