The First, Second and Third Parties
We explain it this way, and it may not be technically accurate, but that does not really matter. When you suffer an on the job injury in Oregon, you are covered by your employer's workers' compensation insurance. We consider you to be the "first party," and the insurer is the "second party." In many cases, that is everyone involved in the claim.
Workers' compensation in Oregon is usually your only remedy, that is, your only source of recovery. The benefits are what is provided for in the statute. Generally, you cannot sue your employer, even if it was negligent in causing your injuries. You cannot sue a negligent co-worker if they were negligent while working for the employer. Again, these are general rules, and there are always exceptions.
However, if another person, a "third party," causes your injury, then there is a claim against that person, if you can prove they were careless, and that the careless behavior caused your injuries.
First, let's start with an example. You are at work, and asked to run an errand. While driving across town, you are stopped in traffic, someone hits you from behind, and you are injured. You have a workers' compensation claim because you were injured on the job. But you also have a personal injury claim against the person who caused the collision, which we can call the "at fault driver." That person is the "third party." So, you have two claims from the one incident. Because the workers' compensation carrier is paying your benefits, they have a lot of say in what happens with the third party claim.
The Workers' Compensation Carrier Has a Say
This is because your claim against the other party includes medical expenses and lost income. These are benefits the workers' compensation carrier is already paying, so the workers' compensation carrier will want reimbursement from the at fault driver's insurance company for the money it spent on medical bills and disability benefits. Another way of looking at it is that you and your workers' comp. carrier are in the same boat. You both suffered losses. You suffered a loss of your health, and the workers comp. carrier suffered a business loss. So, each of you has a claim.
The Notice of Election
You do not have to pursue your third party claim, but you should. We almost always advise clients to pursue the claim on their own. If you don't the workers' compensation carrier will, and all they are interested in is getting reimbursed for the benefits they provided. Well, there is more you can recover if you pursue the claim on your own. That is why you should pursue the claim on your own.
The workers' compensation carrier should send you a letter explaining all of this with a form called a "notice of election." This form asks you to make a choice, or an "election." You can elect to pursue the the third party claim on your own, or you can let the workers' compensation carrier pursue the claim for you. If the workers' comp. carrier pursues the claim, it is looking out for itself to get back what it paid in benefits. This is why we almost always advise clients to choose to pursue the claim on their own. This makes sure you have the best chance of recovering for all your losses. You must include any medical expenses and lost income that the workers' comp. carrier provided you as part of your claim. If you recover expenses the workers' comp. carrier paid on your behalf, you must reimburse the workers' comp. carrier out of your settlement for those benefits.
"...we almost always advise clients to choose to
pursue the claim on their own."
When you elect to pursue the claim on your own, you must keep the workers' compensation insurance company updated on the claim, and you cannot settle the case without the workers' compensation carrier's permission. This "veto" power allows the workers' compensation carrier to make sure it is getting reimbursed as much as possible. Sometimes, there are issues that prevent the workers' compensation carrier from getting full reimbursement out of your settlement. The careless party may not have enough insurance, or there may be issues about proving who was at fault. The statute that governs third party reimbursement allows reductions or discounts on the amount you must pay back to the workers comp. carrier, but only in certain cases. You should also know that if there is a dispute about getting approval for a settlement, or how much you must pay back to your workers' comp. carrier, you can seek review with the Workers' Compensation Board.
A third party claim is like any other personal injury claim. There are time limits involved, and you have the right to make the same claim for damages as you would with any other claim. Sometimes, you will be able to claim losses that the workers' compensation did not provide you, like compensation for the loss of your health and quality of life.
If you have any questions about a third party claim, contact us. We have handled many third party claims, all the way through trial, and help people with these issues all the time.