When an employee is injured at work, he or she typically has a right to file a workers compensation claim with the North Carolina Industrial Commission. If, however, the injury was caused by the negligence of a third party, the employee may also file a lawsuit against that third party. If the employee receives a settlement or verdict from the third party, the employer may also have a “lien” against the employee’s recovery to the extent of its payments. The respective rights of the employee and employer are controlled by N.C.G.S. § 97-10.2. To discuss third party or workers compensation claims with a North Carolina employment injury lawyer, contact Maginnis Law at 919.480.8526.
Initially, the employee should be aware that during the first 12 months after the accident, he or she has the exclusive right to file a lawsuit against the negligent third party. HOWEVER, if he or she fails to do so, the employer then has a joint right for the next 22 months to file suit in the employee’s name. The exclusivity to file a civil lawsuit reverts back to the employee for the final 2 months before his 36 month statute of limitations runs up.
There are also important evidentiary and substantive rules contained in 97-10.2(e). First, “the amount of compensation and other benefits paid or payable on account of [the employment] injury or death” is admissible in the case against the third party. This means, for example, that the plaintiff’s attorney can inform the jury that the workers compensation carrier has paid $100,000.00 in medical bills. The Court will then instruct the jury that this amount of compensation will be deducted from any settlement the plaintiff obtains and will be paid to the workers compensation carrier.
Another important issue in third party cases is that the third party can claim a deduction if it contends the employer negligently contributed to the employee’s injuries. The jury is entitled to decide this issue and if it finds that the negligence of the employer “joined and concurred” with the negligence of the third party, the verdict shall be reduced by the amount the employer would otherwise receive for its workers compensation lien. The entire verdict in that case is given to the employee.
The most important right for the employee is contained in 97-10.2(j). This section permits the employee to request a hearing to reduce or eliminate the workers compensation lien. This can be done after a verdict is rendered or once settlement has been reached. This is particularly important when there is limited liability insurance available. For instance, assume the employee is a car salesman who is injured while on a test drive with a potential customer. He sustains catastrophic injuries but there is only $50,000.00 of automobile insurance coverage available. Even if his workers compensation carrier has paid $300,000.00 in medical bills, the judge is entitled to find that it would be inequitable to allow the employer to receive a lien and he can reduce or eliminate the lien.
The attorneys of Maginnis Law represent seriously injured North Carolinians. We offer contingency fee arrangements. This means that you only owe an attorneys’ fee if we are successful for you. We provide free consultations and will travel to meet with you.
To discuss your accident case with a North Carolina employment injury attorney, call Maginnis Law at 919.480.8526 or send a question using our contact page. We handle cases throughout North Carolina, including Raleigh, Durham, Greenville, Apex, Chapel Hill, Greensboro, Fayetteville, and Sanford.