I was injured on a job site about two years ago. My leg had two operations and I missed a year of work. Recently, I received a letter in the mail from my compensation carrier stating that they are exercising a right of subrogation. What does this mean?
In short, this means that you should file a lawsuit against the owner and general contractor for personal injuries arising out of your job site accident. Section 29 of the Worker’s Compensation Law gives the compensation carrier a right of subrogation. Subrogation means that the compensation carrier stands in your shoes. The carrier can sue the parties responsible for your personal injuries for compensation benefits paid as well as personal injuries. Worker’s Compensation Law § 29(2).
Since you were injured on a job site during construction work, New York Labor Law would probably protect you. This means New York Labor Law § 240 or § 241 (or both) would likely cover your claim. As explained in earlier posts, you have a cause of action against the owner and general contractor on the job site for your personal injuries. Additionally, if you do not respond to the letter you received from the compensation carrier within 30 days, the compensation carrier has the right to assign counsel. The carrier will pursue a claim on your behalf. Furthermore, if you do not cooperate with the lawyer the carrier assigns, you risk losing your compensation benefits.
Carrier Exercises Right of Subrogation
The compensation carrier assigning counsel to sue for personal injuries would not be beneficial to you. If the compensation carrier files a lawsuit on your behalf, then the compensation carrier will ensure that their lien gets paid first and in full. If there is any settlement or judgment in excess of the worker’s compensation lien, then you would be entitled to 2/3 of any award in excess of the compensation lien. Worker’s Compensation law § 29(2).
Injured Party Sues Themself
If you file the claim yourself, then the compensation carrier has a lien on your recovery. This means that the compensation carrier would recover 2/3 of their lien. You would be able to keep the rest after paying for attorneys fees and disbursements. Worker’s Compensation Law § 29(1). The second option would be better for you because you only have to pay back 2/3 of the compensation lien. Also, since a legal action you started would be for your benefit, your interest is for your recovery. If the carrier pursues a lawsuit, their motivation is to recoup the compensation benefits paid to you.
Thus I would strongly urge you to file a summons and complaint against the general contractor and owner of the job site where you had your accident.
Subrogation for Other Claims
This assignment of a Worker’s Compensation claim can also affect other types of claims as well. For example, if a doctor had injured you during your course of treatment, you may have a claim for medical malpractice. A medical malpractice claim against the treating physician falls within Worker’s Compensation Law section 29. So if the employee takes compensation and the injuries were exacerbated by a physician’s negligence, the compensation carrier has a right of subrogation. The carrier could sue the doctor for malpractice on your behalf. Parchefsky v Kroll Bros., 267 NY 410, 196 NE 308 (1935); Schreckinger v York Distributors, Inc., 9 AD2d 333, 194 NYS2d 67 (3d Dept 1959).
No Assignment for Motor Vehicle Accidents
But if you were involved in a motor vehicle accident on the job, the compensation carrier does not have a lien on your recovery. The carrier cannot assign counsel to sue on your behalf. So, if a workers compensation carrier provides first party benefits (like a no fault carrier), then the compensation carrier has no right to assign your claim and sue another driver. Worker’s Compensation law § 29(2-a).
By James Santner, Esq.