By John Roxon

Trying to handle a workers’ comp case without legal counsel can be very difficult and it is possible to destroy your claim ‘by accident’.

For example, let’s assume that you suffer a serious back injury on the job. You report the injury and you are sent to doctor’s care, then to an orthopedist who diagnoses you with a disc injury after an MRI. You have surgery. Some weeks after the surgery you are sent to a physical therapy office for rehabilitation. You are out of work, but getting weekly checks. Everything seems to be going fine, so you feel there is no need for a lawyer.

One day, you pull out of the physical therapy parking lot heading home and as you pass through the first intersection you are t-boned by a driver who ran the red light. You are taken by EMS to the hospital and evaluated with back pain, bruises, etc. You are prescribed pain meds and physical therapy, but because you are already getting this treatment under workers’ comp, you just continue with your workers’ comp treatment. The at-fault driver’s insurance company contacts you and eventually you settle your claim against the at fault driver for $15,000 and sign a release of all claims. No need to notify the workers’ comp carrier or anyone else, this has nothing to do with workers’ comp, right?

Wrong

When an injured person has claims both under workers’ comp and against a third party who is at fault for causing the injury in the same incident, there are claims both under workers’ comp and directly against the third party. The easiest example of this is when a delivery driver on the job is hit by an at-fault driver. However, by law, the workers’ comp insurance company must be given written notice that an action against the third party is going to be pursued, usually by filing a workers’ comp form S-2. If the injured person settles the case against the third party without notifying or reaching an agreement with the workers’ comp insurance company, they may lose their right to workers’ comp benefits. But how can this be when you are only driving to or from the doctor after you are already injured?

Shuler v Gregory 622 S.E.2d 569 (SC app 2005) states that you are considered to be ‘under the course and scope of your employment’ while going to and from authorized workers’ comp doctor and treatment visits. The court stated that because these visits are mandatory, required by the employer as a result of a work injury, mileage is paid, and because the employee could lose their workers’ comp benefits by failing to attend the appointments, they are covered by workers’ comp while traveling to and from the appointments. Therefore, even though the car wreck occurred after the original work injury, it is actually considered to be part of the original workers’ comp case.

The workers’ comp insurance company has the legal right to be repaid from any third party settlement for any payments made on the workers’ comp case, including medical, weekly and settlement payments. By settling the third party case and accepting the money, the injured worker has interfered with the right of the workers’ comp insurance company to recover their statutory lien.

Even worse, when you settle the third party case and accept a settlement, releasing the at-fault party, the law says you have ‘elected your remedy’. That is, you elected to make a recovery only under the third party injury case, waiving any workers’ comp benefits.

“If the employee fails to give the notice required by [Section 42-1-560(b)] and prosecutes the third party action to a final determination, …the employee will be regarded as having elected his or her remedy and will be barred from receiving workers’ compensation benefits” Hudson v Townsend Saw Chain Co. 370 S.E.2d 104 (SC app 1988).

Worst case scenario, in addition to losing your workers’ comp benefits, the insurance company may also seek a credit or reimbursement for the amount of their lien from you. Clearly, it is necessary to consult with an experienced workers’ comp attorney at the outset of your claim.

About the Author

Mark Joye is the Head of the Litigation Department at the Joye Law Firm. A Board-Certified Trial Advocate with nearly 30 years of litigation experience, he currently serves on the Board of Governors for the American Association for Justice and is a past president of the South Carolina Association for Justice. In a recent trial, Joye headed a trial team that secured $17 million for a family killed in a tractor-trailer accident.

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