Posted By Charles J. Cochran, Jr. on May 9, 2009
A few weeks ago I wrote an article in which I spoke about the specialization as well as the general practice of law and a second article concerning worker’s compensation subrogation. There are many instances where knowledge of more than one area of the law is necessary in order to manage all areas of the case. Since I have been in practice there have been a number of times when I represented an individual who had both a workers compensation claim as well as an actionable personal injury claim. In its simplest form the situation occurs when a person is injured in a motor vehicle accident while they are in the course and scope of employment. I have had the opportunity to be involved in a substantial number of these hybrid type of cases and in so doing I have dealt with multiple versions of the Ohio worker’s compensation subrogation statute over the years. It seems that over the past few years that I have been dealing with more and more instances where the Tortfeasor is carrying a low limits policy and my clients Underinsured Motorist coverage is less than desirable in its limits. As our current economic crisis continues the luxury of higher limits policies seems to be falling off with more and more drivers opting to keep State minimum coverage in place. These “low limit” type cases are the main focus of this Article.
When an attorney handles a personal injury case they must always be mindful of the bottom line since no matter how well the case is handled and the recovery is maximized what usually matters to the client is what they walk away from when the matter is finally brought to conclusion. People have a lot of common sense and you cannot explain to them that while you were able to recover a sum of money which is substantially greater than the normal recovery in that type of case the bottom-line recovery for the client might only be a few dollars. If you are working on one of these hybrid cases you must have a thorough understanding of now the Ohio worker’s compensation subrogation statute works. You will need to deal with the Bureau of worker’s compensation not only in regard to the actual payments which they have made for medical expenses but also a future projection as to what additional medical expenses will be incurred during the life of the claim, after the personal injury settlement, as well as a projection of what you might be able to recover in other ways including in a future percentage of permanent partial claim which you, or another attorney, might be making long after the personal injury case is settled.
Damages in a personal injury case are predominantly made up of:
1. Present medical expenses.
2. Future medical expenses.
3. Permanency of the injury.
4. Present pain and suffering.
5. Future pain and suffering.
6. Reduction in Quality of Life.
7. The impact of the injury upon some third person (Consortium).
8. Wage loss both past and future.
9. Other forms and types of damages specific to the facts and applicable law in the case.
Commonly, damages in a workers compensation case are somewhat different as they do not include pain and suffering, reduction in the quality of life or consortium. This distinction is fundamental since the method of arguing the Personal Injury side of the case can have great impact upon the bottom line recovery which is had by the client. When arguing the Personal Injury case it is important that you understand that any focus which is made on other than Pain and Suffering, Reduction in Quality of Life or Consortium may impair your ability to argue reduction in the amount of the Worker’s Compensation subrogation claim. A Doctor who cannot provide a prognosis in a case or phrases his opinion as guarded leaves room for the Attorney to argue a poor future for the Injured party so while the absence of the prognosis does not necessarily damage the personal injury case, and a guarded prognosis might in fact help it, the opinion or lack may cause the claim for Worker’s Compensation to increase. A Doctor who provides a good prognosis injures the value of the Personal Injury part of the case but leaves room for the Attorney to argue for a reduction in the subrogation claim as far as future expenses and permanent disability is concerned.
If you are dealing with a low limits policy, where the potential for actual recovery is limited by the collectibility of any judgment, it is important the Attorney knowingly make a decision as to whether he should tactically avoid focusing the damage argument on other than Pain and Suffering , Consortium and Lost Quality of Life since a damages allocation to matters which are subject to Worker’s Compensation subrogation only operate to increase that claim by limiting your argument toward reduction. In situations where the potential for recovery is not limited, except by all of the actual damages suffered by the Injured party, there is no real reason, of significant import, to limit the direction of argument for any viable claim. In many instances the BWC Actuarial calculation setting value for a future Permanent partial award or future medical expense appears to be very reasonable but keep an eye on it as that could change at any time. The focus in those situations should not necessary be on limiting reasonable subrogation since you really will be hard pressed to argue a particular form of damage and then deny a subrogation claim for that same damage. In some instances the Attorney does not have the opportunity to be selective in the argument as the severity of the injuries themselves make the argument without the Attorney’s direction. In these instances the Attorney might look toward a fairness type of argument pointing toward the Injured Parties failure to make a full recovery to attempt a reduction in the subrogation claim. I do not wish to over simplify this matter I simply wish to point out that you may need to provide the person who is handling the BWC Subrogation claim all of part of your Settlement Package to the Liability Carrier in order to support your argument and obtain any substantial reduction in the BWC Subrogation claim. I am a firm believer that you can and should fully maximize your clients Net recovery while at all times avoiding any type of fraud or misrepresentation to any other party or entity involved in the process. Read the subrogation statute carefully when handling one of these hybrid cases and let it guide you as it has a specific method to be used where subrogation is concerned and I did not approach this Article to dissect its terms. Further, the question of employer intentional tort or other cause of action may be involved which should also be part of any case review and those topics also exceed the scope of this Article.
It is important that we keep in mind that the true value of a hybrid type case may lie in the Worker’s Compensation claim itself so that while we may make a tactical decision to avoid an argument favoring certain types of damages we must be careful that we do not damage the Worker’s Compensation case in any zeal to increase the recovery in the Personal Injury case by limiting the Worker’s Compensation subrogation claim. It is a sometimes difficult balance the practitioner must be particularly aware of in order to represent a client to the best of our ability. Often, a decision needs to be made, of course avoiding fraud or misrepresentation in all instances, as to which claim provides the most benefit to the Client. The caution is that a practitioner must keep themselves fully aware of all elements of an injury claim and not just with the part they are most familiar with. There are a number of other instances where Worker’s Compensation and other causes are mixed together to make these hybrid forms and I would appreciate it if anyone could briefly share their experience or advice for the benefit of all. It seems to me that subrogation has become an important if not major portion of many types of personal injury cases no matter how it is formed. This area can be a real hot bed of opinion and I invite all comments.