When an employee is injured on the job he or she is covered by the Missouri Workers’ Compensation Law which is laid out in Chapter 287 of the Missouri Revised Statutes. Chapter 287 defines an “employee” and an “employer”. Workers’ Compensation is a different court than civil law. Worker’s Compensation is an administrative proceeding where there is no right to a trial by jury. The cases are tried or heard in front of an administrative law judge. Here in St. Louis, the cases are heard in the Wainwright Building in downtown. A Workers’ Comp judge does not assess fault because Chapter 287 was established to cover “any injury that arises out of or in the course of employment” if the incident is the “prevailing factor” that causes the injury. It does not matter who is at fault or who caused the injury—if it happened while working and as a result of working, you are entitled to a recovery. It is a no-fault situation.
Personal injury is different. The cases are tried in civil courts with a jury. Fault or liability is something that must be proved in a civil case by a preponderance of the evidence (more likely right than wrong). A plaintiff must prove the defendant caused the incident or crash and the injury is a result of that crash. So the question remains: Can you have both a personal injury case and a workers’ compensation claim at the same time? The answer is yes it is possible, but not in most cases.
As stated above, a person injured while working is entitled to workers’ compensation benefits from their employer. However, a frequent example that comes up is the following scenario: A worker is injured at work but the injury is caused by someone not related to the job—i.e., the employee is driving from one job to the next and is struck by another motorist. In a case like that, the employee has a claim for workers’ compensation benefits as well as a claim against the driver. The claim against the driver is known as a “third party liability claim.” Meaning, the employee has a claim against someone other than the employer—that someone is considered a third party—the employee is the “first party” and the employer is the “second party.” The employee is claiming the third party is liable (“responsible”) for the injuries, thus you have a “third party liability claim.”
Can you recover compensation from both workers’ comp and the third party? Yes but there are some tips on how to do this effectively. Workers’ Comp insurance will pay out quickly and start with weekly payments before a lump sum settlement is reached. The third party liability claim will not pay out until a settlement is reached. Workers’ comp will want to be paid back what they have paid out—from the third party liability insurance. In our example, say worker’s comp pays out $5,000 in total weekly payments. Workers’ comp will want to be paid $5,000 from the liability carrier. Workers’ comp will assert a lien against the liability settlement for $5,000. However, your attorney for your third party liability claim should be able to negotiate a reduced amount on the lien from workers’ comp. Why? Because without you pursuing a third party liability claim, workers’ comp would not get a penny. Essentially, you have them over a barrel—you can say to them “I won’t be settling my third party liability claim unless you agree to take x amount on your lien.” The reason you can do this is simple—if you never settle the third party liability claim, workers’ comp will never get paid. Remember, workers’ comp has lien on the third party liability settlement IF the settlement happens. You decide whether to pursue or settle a third party claim. It’s your choice alone. Some money, even at a reduced rate, is better than no money to the workers’ comp insurance carrier. As a result, the will generally reduce their lien on the third party claim so they can get you to settle and they can get paid. That leaves more available to you for recovery.
The above can happen if one rule is adhere to: Your attorney must not settle the third party liability claim UNTIL the workers’ compensation claim settled. The comp claim must be settled before the liability claim. If not, worker’s comp can recover the entire amount they paid and you will wind up with nothing from the liability carrier.
The whole ordeal is essentially an argument between insurance companies on who is going to pay less for your injury. You should not have to get in the middle of it. Hire a qualified attorney who knows how to balance workers’ comp claims with third party liability claims and you will be ok. If not, you will be looking at paying back a large amount on the workers’ comp claim.