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Recovering damages from a third party for work-related injuries

All Ohioans who suffer a work-related injury are entitled to receive benefits according to the formula prescribed by the state's workers compensation code. These payments are made in lieu of amounts the worker might recover in a lawsuit against the employer even if the employer were liable for the injury. Many times, however, a work-related injury is caused by the negligence of a third party. This post will examine the rules for recovering damages from such a third party.

State law gives both the injured worker and any party paying workers compensation benefits, called a "statutory subrogee", the right to sue the third party, but the "net amount recovered" is allocated according to a statutory formula. The "net amount recovered" from the third party is defined as the amount recovered minus attorneys' fees and costs, and other expenses paid by the worker to prosecute the lawsuit. Punitive damages awarded by the court are not included in the net amount recovered.

The allocation formula awards the injured worker and all subrogees a pro rata share of the net amount recovered. In essence, the injured worker receives a percentage of the net amount recovered based on the ratio of uncompensated damages divided by the total subrogation interests. Each subrogee receives a pro rata share equal to payments made by that subrogee. If all subrogees are fully compensated before the net amount recovered is exhausted, the balance is paid to the worker. A successful claim against one or more third parties may significantly increase the amount that an injured worker will recover beyond statutory workers' compensation benefits.

Workplace injuries involving possible third party liability can be very complicated. Anyone who has suffered such an injury may wish to consult a lawyer who practices workers' compensation law for an analysis of the case and the legal rules and facts that will determine the likely outcome.

Source: Ohio Revised Code §§4123.93 and 4123.931, Subrogation, accessed on Jan. 16, 2017

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Philip J. Fulton Law OfficeRepresenting Victims Of Workplace Injuries And Disability

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Columbus, OH 43215

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