August 2006 SBH Quarterly Newsletter
PDF FormatCan You Do More to Protect Your Third Party Lien?
The initial stages of a workers’ compensation claim significantly impact
the likelihood of recovering a third party lien. Are you doing everything
possible? Can more be done? Often times the worker is unaware of the
potential third party cause of action. As the clock ticks, memories lapse,
investigative materials disappear, and questions go unanswered.
With every claim, you should ask who, what, when, where, and how. These
questions can lead to the determination of whether there is a viable third
party claim. There are several common types of third party claims: motor
vehicle/pedestrian accident, defective machinery/product, failure to
maintain premises, animal bite, and injury caused by visitor/subcontractor
at worksite.
Find out early if there are witnesses and obtain their names, addresses, and
phone numbers. Question the circumstances of the accident. What time of day
was it? What were the weather conditions? Was the injured worker at fault in
any way? It is also a good idea to obtain internal investigative reports
generated by the employer and its agents, police reports, and statements of
witnesses as soon as you learn of their existence. Contact other involved
insurance companies for more information about the party at fault, insurance
information, and facts it uncovered pertaining to the injury.
If the case is a product liability case, inquire whether there have been
prior injuries and whether the product was modified or changed in any way.
You will also need to find out whether the employer or another party was
responsible for maintenance.
Once you believe there is a potential third party claim, provide the worker
with the election letter by certified mail. You should diary your file
regularly to monitor the status of third party recovery. Maintain good
communication with the worker’s attorney to ensure a Complaint and Notice of
a Claim, if applicable, are timely filed.
After the initial injury, a worker may be further injured by a negligent
medical provider. Often times, the worker is unaware of the potential
medical malpractice claim. Examiners may be the first to identify the
potential medical malpractice claim based on their experience. You should
advise the worker or attorney regarding the potential claim and send a third
party election letter.
The more fact-finding done during the initial stages of a claim, the
stronger your likelihood of recovering your third party lien. The
information will also help you evaluate whether recovery is probable, the
amount of expected recovery, and whether compromising your lien is
reasonable.
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