Workers’ Compensation

Third Party Claims and Workers’ Compensation Liens On Claims

Caveat and Disclaimer:

Generally speaking (but not always), the injured worker cannot sue his employer or coworker for his injuries, nor can the employer deny the employee’s Workers’ Compensation claim because of the negligence of the employee or a coworker.

Every case is different and there are many instances in specific and complex fact scenarios where a claimant can bring a dual action for workers’ compensation and a separate claim against the employer. This is why one should ALWAYS consult with an experienced workers’ compensation attorney like Peter Brown, who has handled complex matters with dual implications.

Straight Forward Workers’ Compensation Claims:

Regular civil suits can be brought against a third or outside party who is responsible for the worker’s injuries. The injured worker shares the right of action against the third party with his employer and insurance company, because they have a right to be reimbursed for what they paid out in Workers’ Compensation benefits for the injured worker.

This is most common when the worker is injured in an automobile accident which results from the negligence of a third, unrelated party. An example would be a police officer who is hit in his cruiser while working. The driver of the vehicle might be at fault for running a red light and striking the officer’s vehicle, resulting in injury. The officer would have 1) a Workers’ Compensation claim, and 2) a regular third party liability claim.

If the officer is at fault, the officer will still have a Workers’ Compensation claim for his on the job injuries.

Remember, Workers’ Compensation pays for a worker’s injuries whether or not the worker caused his own injuries.


In a Workers’ Compensation/Third Party situation, the injured worker can pursue the matter in one of three ways:

1) he can collect his Workers’ Compensation benefits and not pursue the accident case, thereby allowing the employer and insurance company to seek reimbursement of their Workers’ Compensation expenses from the responsible third party in the accident case;

2) the injured worker can decline Workers’ Compensation altogether and seek full recovery of his damages exclusively through the third party case; or,

3) the employee can receive his Workers’ Compensation benefits (medical treatment and compensation) and proceed with the third party case, acknowledging the employer/carrier’s right to reimbursement for their Workers’ Compensation expenses, from the proceeds of the third party case.

The injured employee by law, must pursue and conclude any Workers’ Compensation matter prior to the settlement of any third party claim.

The reason is to protect the Workers’ Compensation carrier’s (insurance company’s) right of reimbursement for any monies paid to the worker in the form of wages, medical treatment and settlement.

The employee may preserve the third party claim but will be put on notice of any lien amount to be asserted by the Workers’ Compensation insurance carrier.

The Law Office of Peter David Brown and our very experienced Workers’ Compensation staff will challenge and negotiate all liens with the Workers’ Compensation carrier.

*We do not take a separate fee for this service; it is included in the handling of your matter.

Other Benefits and Workers’ Compensation Claims

Workers’ Compensation benefits are typically paid by an insurance company, self-insurance fund, etc. to a worker who has suffered an on the job injury. Workers’ Compensation benefits are not the same thing as group health/disability benefits, secondary or personal health or disability coverage, retirement disability, Social Security Disability benefits or unemployment benefits.

Sometimes Workers’ Compensation benefits may be paid for or provided by the very same insurance carriers that also pay the employer’s group health/disability insurance claims for non-work related illnesses and conditions, such as routine surgeries with downtime for recovery, or obstetric care and maternity leave. (This is common with larger employers.) Sometimes employers do not report work-related injuries to their insurance companies but, file them as regular group health/disability claims instead. This can easily snowball into a significant problem.

The injured employee may be unaware of how his employer handled “the paperwork” and believes that he has properly reported his injury and filed a Workers’ Compensation claim, only to find out later that his work injury was either never reported to the Workers’ Compensation carrier.

The injured worker might find that his Workers’ Compensation claim was actually denied by the Workers’ Compensation carrier or his Workers’ Compensation claim was never filed with the South Carolina Workers’ Compensation Commission at all. This can be a costly mistake if the injured worker has a serious injury that involves permanent disability, for which Workers’ Compensation would have paid additional benefits – but group health/disability would not.

The group health/disability carrier may realize that they are paying for a work-related injury and suddenly deny payment for medical treatment or disability, demand to know the status of the Workers’ Compensation claim and possibly, seek repayment of their payout in medical expenses and disability benefits for the work injury.

Secondary or individually-purchased health or disability insurances may provide benefits in addition to Workers’ Compensation. These types of coverage might require a credit or offset for any Workers’ Compensation payments made to the injured worker or like a group health/disability carrier, demand reimbursement for any payments made when Workers’ Compensation should have been paying. This all depends upon the specific language of the insurance contract. Again, Workers’ Compensation pays permanent disability benefits whereas the secondary or individually-purchased health or disability probably does not. Retirement disability coverage is usually provided by the employer for long-term employees who have an injury or condition which prevents them from continuing in their employment up to the regular age of retirement. This coverage is typically available in addition to any Workers’ Compensation benefits but, again, some employers might have an employee apply for these benefits instead of Workers’ Compensation benefits. Social Security Disability is another social form of insurance that is administered through the Federal government. The determination of disability for Social Security purposes is vastly different in its requirements from any determination of disability under Workers’ Compensation. Also, Social Security has multiple formats for payment of benefits and may include eligibility for Medicaid.

In Workers’ Compensation cases, it is critical that the injured worker’s potential eligibility for Social Security and Medicaid be taken into consideration during settlement of the Workers’ Compensation case. (In South Carolina, Workers’ Compensation settlements typically include some language regarding the allocation of the Workers’ Compensation benefits paid in order to minimize the potential offset requirement under Social Security Disability, as well as Medicaid “set aside” arrangement.)

Unemployment Benefits:

Finally, unemployment benefits might be paid to an injured worker who has been laid off or terminated. This might be the employer’s error in processing paperwork but, it can pose a problem for the injured worker if he is unable to work because of his work injury but receiving unemployment. Most unemployment insurance systems require that the worker sign a statement that he is be fully capable of working in order to receive those benefits. This may be in direct contradiction to the worker’s Workers’ Compensation disability claim. The bottom line is that any of these other employee benefits or coverage as well as any other forms of social insurance may potentially have liens against the proceeds of a Workers’ Compensation claim.

This is why you need to hire an experienced Workers’ Compensation attorney to handle your claim. Please feel free to e-mail us at or call us at (843)971.0099. You can click here to reach us now and set up a no-cost conference to evaluate your claim.

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