If you suffer injuries from an industrial or construction accident, most of the time the accident will only be covered under workers compensation. However, if you are working at an accident site where there are multiple companies present, or you have been injured by somebody other than your employer, you may have a right to pursue an injury claim. The claim will be against the other party, not your employer, and will not be limited to workers compensation payments or settlement. This is called a “third party” claim. In this type of situation, it is important to hire an experienced attorney who will know how to handle a third party action.
Cooperating with the Workers Comp Carrier
When a third party appears to be responsible for the worker’s injuries, the workers comp carrier is likely to be cooperative with the investigation. This is because the workmans comp carrier may place a lien on the third party lawsuit. If the suit is successful, then the carrier will be able to recover the money they have paid to the injured worker from the settlement or award. So it is in their best interest to cooperate with the victim’s attorney.
Often the workers comp carrier has important evidence, such as photographs and physical evidence, under their direct control and supervision. This evidence can be crucial to proving the negligence of the third party.
Preventing Spoliation of the Evidence
An experienced work attorney will also know to prevent the third party from taking control of the evidence. An attorney with third party action experience will immediately file suit and seek judicial protection to hold all evidence. Even before the suit is filed, a good attorney will notify all parties that any movement of the evidence may be considered “spoliation”, and subject to civil penalties, etc. This can be done by certified letter before the suit is filed.
My law firm recently represented a worker injured at a construction site. It seemed likely that the workers comp carrier would be willing to cooperate with us. So we called them immediately and began the investigation. We photographed the accident scene, obtained a court order from District Court seizing the evidence, and established liability within two months of the accident. In this particular case, we were able to seize the evidence and establish the third party’s liability with the help of the workers comp carrier.
Even if you have been injured at your workplace and it seems likely that your employer is at fault, it is still worthwhile to examine the possibility that a third party is actually liable. A workers compensation attorney may or may not recognize a third party action, so it is important to ensure your attorney is also experienced with third party work injury lawsuits. Additionally, it is best to start working with your attorney as quickly as possible. The more time passes between the accident and the start of the investigation, the greater the chance that important evidence will not be protected and will be lost.