II. Claims Against 3rd Parties: (1) Common enterprise employees (2) Slip & fall, or other premesis injury (3) Vehicle crash (4) Defective product (5) Medical malpractice
III. Subrogation Claims by Your Employer
Workers' comp is a no-fault insurance plan. With a few exceptions, that means that as long as your injury or illness arose in connection with your employment you'll qualify for workers' comp benefits regardless of whether you or your employer was at fault.
You can sue your employer if they deny primary liability for your alleged work- related injury or illness. However, you can only sue them in an administrative court operated by the Office of Administrative Hearings. If you win, the benefits you'll receive are limited to those under the workers 'comp insurance plan, and not what you might have received had you been able to sue them in state or federal district court.
With that said, you may still have a traditional lawsuit against
your employer for a non-workers comp claim. A few examples
(1) A claim against your employer under the Americans with Disabilities Act for discriminating against you if you have a disability.
(2) A claim against your employer for not allowing you 12 weeks of unpaid leave for your serious health condition under the Family Medical Leave Act.
(3) A claim against your employer for terminating or threatening to terminate you from employment for having applied for workers' comp insurance under Minn. Stat. Section 176.82.
(4) A claim against an employer for discriminatory pre-employment medical inquiries or examinations under the Minnesota Human Rights Act.
(5) A claim against your employer if your comp injury adversely affects your seniority with the union.
These are serious charges and you'll need to discuss the matter with an experienced employment law attorney. These suits are handled outside of the workers' comp system, usually before a jury in federal or state district court.
You can sue a co-employee in district court if their actions contributed to your injury or illness, but only if
their conduct was grossly negligent or they intentionally caused
This point was driven home in a famous Minnesota
Supreme Court case that took place in 2005. Kelci
of deceased athlete Corey Stringer, a member of the Minnesota
Vikings football team who died of heat stroke during the 2001
preseason, filed a wrongful death suit against the Vikings and
employees. She was hoping to get her case in front of a jury in order to get a large verdict to supplement a relatively smaller death benefit owed to her under workers' comp. The Court ruled against her, however, stating that she had insufficient evidence to prove the co-employees were grossly negligent, so she could not go forward with her suit and present her evidence in front of a jury.
If you're a Vikings fan, you'll want to read the Court's Opinion on this very sad case, click here.
If someone other than your employer or co-employees played a role
in your injury or illness, then you may have a traditional
lawsuit against them.
You can sue an employee of a different company who may have caused your injury.
However, if they were working side-by-side with you on the same project, then your receipt of workers' comp benefits will preclude you from suing them. Instead, your employer will sue them and their company to recover work comp benefits paid to you.
While on the job, If you slipped and fell on someone else's property or in some other way suffered a personal injury, you'll need to settle with, or file a claim against, the 3rd party whom you believe acted negligently.
To prevail on a negligence claim, you'll need to show that:
(1) The 3rd party had a duty to act with reasonable care to safeguard your health (no duty if you were a trespasser);
(2) You suffered an accident as a result of a hazard on their property that caused your injury;
(3) The 3rd party knew or should have known about the hazard that caused your injury and that they had enough time before the accident to have done something about it;
(4) The 3rd party's negligence was greater than your own negligence (they'll claim you were also at fault by failing to avoid the hazard or that you continued despite your awareness of the hazard).
If you prevail on the negligence issue, then you'll need to prove the damages that you've incurred as a result of the accident.
If you were injured in a vehicle crash while on the job, your benefits will be split between your work comp insurer, the no-fault insurer (the company who insured the vehicle you were driving, or passenger thereof), and the liability insurer (the company who insured the vehicle who hit you).
1. Comp Insurer
If the comp insurer accepts liability for your injury, then they become the "primary insurer" and will pay your wages, medical, and rehabilitation expenses, or death benefits, if that's the case.
2. No-Fault Insurer
No-fault is the secondary insurer in these cases. (If they acted as primary prior to work comp accepting primary liability status, they'll seek reimbursement from your comp insurer).
Despite being the secondary insurer, the no-fault carrier is obligated to pay you wages, but only if its own payment exceeds the comp insurer's wage payment.
Your no-fault insurer pays 85% of your gross income while you're unable to work, minus any income that you've received if you returned to partial work, subject to a maximum of $250.00 per week (however, this maximum will increase if coverage is stacked).
For example, assume your wage at the time of your accident was $750.00 per week and you have not yet returned to work. Payment under no-fault, assuming no stacked coverage, is (.85 x 750) = $637.50, reduced to the maximum of $250.00. Payment by the comp insurer is (66 2/3 x 750) = $500. Since the no-fault payment obligation is less than the comp insurer's payment obligation, no-fault is not required to make a payment.
Under the same scenario, if you had three coverages stacked, the maximum under no-fault would rise to $750.00 (thus, no-fault's obligation to pay $637.50 is not reduced to $250.00). No-fault would be required to pay you the amount that exceeds the comp insurer's wage payment of $500.00, which is $137.50.
No-fault has no obligation to pay your medical bills as long as your comp insurer is paying them. If the comp insurer refuses to pay a medical bill because it's not reasonable and necessary, no-fault can use the same defense to avoid paying the bill. In these cases, you may have to rely on your health insurer to pay the bill.
No-fault doesn't recognize "rehabilitation" or "permanent partial disability" and is never obligated to pay these benefits.
3. Liability Insurer
In order to recover damages from the liability insurer, (the company who insured the vehicle that hit you), you're going to have to prove that their driver was at fault for the accident, that the accident was the cause of your injury (and not something in your past medical history), and that you meet one of four thresholds:
(1) The accident resulted in a permanent scar or disfigurement; (2) The accident caused you 60 days or more disability -- in which you couldn't engage in substantially all of your usual and customary activities; (3) The accident resulted in $4,000.00 or more in medical expenses; or (4) The accident resulted in a permanent injury.
Finally, you'll need to prove the damages that
you've incurred as a result of the accident.
If you were injured by a defective machine or product, the doctrine of "strict liability" will apply. In these cases, you'll need to show that the companies (manufacturer through retailer) designed, manufactured, sold, repaired, or maintained a defective product, or provided inadequate instructions on the use of the product.
These cases are often expensive because they involve hiring expert engineers to testify about the product, and the defendants are often large companies with large budgets who can afford to pay expert legal counsel to keep the case tied up for years, especially if the case involves numerous injured parties.
You'll want to speak to a lawyer experienced in products liability cases before pursuing a claim.
Doctors and other providers are not responsible for every bad medical outcome. They're liable only if they did something, or failed to do something, that their peers would or would not have done in a similar situation.
These cases can be fairly simple. For example, if the doctor nicked a nerve during surgery and admitted to it in his or her medical notes, then the doctor's malpractice insurer may offer an adequate settlement to keep the case out of court.
On the other hand, these cases can be quite difficult and expensive. If the provider feels that s/he did everything their peers would have done, or if they're covering up an error, then your case will have to be proved through costly expert testimony in court.
You'll want to speak to a lawyer experienced in medical malpractice before pursuing a claim against a medical provider.
If you pursue a claim against an allegedly
negligent 3rd party, the comp insurer may wish to join in your
suit. If you choose not to pursue a claim, the comp insurer may still do so on their own in order to recover benefits they've paid out to you. In any event, you'll want to keep the comp insurer notified of your intentions throughout the entire process.
If you pursue a claim, you'll normally start by sending a demand letter to the 3rd party's insurance carrier. The letter will outline the facts from your perspective, show why their client is at fault, show how the accident caused your injury, and show all the damages that you've incurred as a result of the ordeal. Upon receipt of your information, the insurer will want to investigate the matter and make you an offer.
You have several options if you choose to settle with the 3rd party's insurance carrier.
(1) You may settle all claims (you'll need to get the comp insurer's consent);
(2) You can settle claims that affected you uniquely but which were not paid by the comp insurer, such as pain and suffering, emotional trauma, loss of consortium, and others -- known as a "Naig" settlement; or
(3) The comp insurer can settle its claims for reimbursement with the 3rd party's insurance carrier without affecting your unique claims - known as a "Reverse Naig" settlement.
If you choose not to settle, you'll need to file your suit in court. Large suits are usually heard by a jury in district court, while smaller suits are more often heard by a judge in binding arbitration. Note that even if you can't sue your employer directly, a 3rd party can sue them for contribution and bring them into your suit if they think your employer acted negligently.
The comp insurer is entitled to a portion of any money awarded to you in pursuit of a 3rd party claim, (except money already partitioned by a Naig or Reverse Naig settlement), or if the comp insurer waives its right to subrogation.
The amount of your award apportioned to the comp insurer is set forth in a formula found in the workers' comp statutes. You'll generally come away with at least 1/3 of your award after attorney fees and other costs of the litigation have been taken out.
If You Think You May Have a Lawsuit Against a 3rd Party
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