Successfully Identifying Workers’ Comp Recovery Opportunities Subrogation in the context of Workers’ Compensation A day in the life of a Worker’s Compensation Claims Professional can be hectic to say the least! New losses that demand immediate attention come in continually. Each claim brings in calls and correspondence from applicant attorneys, doctors, employers, case managers, investigators, defense attorneys, lien claimants, and injured workers. Each request for treatment and report brings rules and deadlines around every corner. Supervisors require diary review, updates, and plans of action, and clients seek account audits. And on top of all that, the claims professional is also responsible for identifying subrogation recovery potential for each claim. That picture is daunting, 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. In general, subrogation in the context of a workers’ compensation case comes in several distinct fact patterns. Motor vehicle accidents Construction site accidents Premises liability Products liability Miscellaneous patterns Let us explore some fundamentals for each. Motor vehicle accidents (MVA’s) MVA’s are the easiest fact pattern to identify with subrogation potential. 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. Some initial and quick steps can be completed to insure proper investigation is completed and recovery is obtained. These include: 1. 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. 2. A demand must be made for the insured to open a claim with their auto insurance carrier. 3. 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 is paramount because the scene of the accident and instrumentation involved often can change quickly. Even a short delay of a few days 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. Common fact patterns include: Injuries involving heavy machinery or scaffolding Falls from heights Materials falling and striking workers Failures to guard against dangerous conditions Once subrogation potential is identified, requests should be made for: Witness statements OSHA reports Contractor reports Premises liability – slip, trip, and fall scenarios These cases are the most often overlooked by claims professionals and insured employers. They are also often 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 should be secured immediately. Products liability These cases have the most obvious fact patterns but can be the most expensive and problematic to pursue. Whenever 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. Quite often, these 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 should 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 is 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. Remember, help is always available from subrogation specialists, vendors, or attorneys who can assist with the questions to ask and evidence to preserve to make sure that subrogation opportunities are not missed. A phone call is all it takes to get started! Search for: Search Archives Archives Select Month September 2026 April 2020 March 2020 January 2020 November 2019 October 2019 September 2019 March 2019 February 2019 January 2019 August 2017 Subscribe To Our Blog First Name Last Name Email * Edit Template
