Because workers are sometimes injured due to the negligence of a third party. Examples of such exposures include malfunctioning equipment, exposure to toxins, motor vehicle accidents, or injury that occurs on the property of a third party. Subrogation and recovering costs related to accidents at work aren’t usually top-of-mind when there’s a workers’ compensation claim. Because of this, it can be challenging to pursue a third-party claim due to the lack of supporting documentation and the failure to preserve evidence.
The importance of preserving evidence is just as important for a workers’ compensation claim as it is for a property or products liability claim. This includes preserving the scene, securing evidence, or taking photos and video. For example, when a chair collapses at a daycare center or equipment breaks down at a construction site, the malfunctioning or broken items should be secured by the business owner and surrendered to the insurance carrier. When a slip and fall occurs in a parking lot, it’s imperative to have documentation which may include photos, videos, or maintenance logs for the accident site. This holds true regardless of who the potential third party may be.
Third parties may include a municipality or a customer; however, these relationships can make it difficult to pursue. Because of the relationship a you have with a third party, it may be difficult to cooperate in the investigation.
And even though West Bend’s claims staff will conduct an investigation on all potential subrogation claims, it doesn’t necessarily mean each one will be pursued. Many factors are considered and investigated on a third-party claim, and regardless of what decision is made, without the evidence, prompt gathering of the facts, or supporting documents, a substantial recovery of paid benefits could be lost.
Please remember the important role you play in gathering and preserving evidence. Timing can be crucial in an investigation. You, as the business owner, may be the best chance we have in gathering evidence quickly. Delays may result if an independent contractor is hired to conduct an investigation. This is especially true for weather-related accidents since weather can change quickly. The window of opportunity can be closed if maintenance is done in a parking lot or when damaged property is repaired to prevent further injury. These things are often done before an investigator can get to the scene. It should come as no surprise, therefore, that the more time that passes, the more difficult it can be to gather necessary evidence to pursue subrogation recovery.
We certainly don’t expect you to be an “expert”, nor would we expect you to do the job of an investigator. Some policyholders don’t want to get involved or aren’t sure what’s needed. When this happens, it’s the job of the adjuster to be understanding, reassuring, and provide as much guidance as possible. If you choose not to get involved, there are outside resources that can help the claims adjuster in a subrogation recovery investigation. These resources may be used in follow up to your involvement for a variety of reasons.
When a party other than you is responsible for causing a worker to be injured on the job, it’s our duty, as the workers’ compensation carrier, to make the injured worker whole by underwriting the expenses associated with that workers’ compensation claim. But our job doesn’t stop there. It’s also our responsibility to make you whole by recovering those expenses and making a positive impact on your claim experience. Educating you about preserving evidence on potential third-party claims can be a major factor in successful recovery on these claims. Regardless of the evidence or facts, however, our workers’ compensation staff is committed to providing Silver Lining® service by conducting a full investigation on any third-party claim on your behalf.
Written by Kim Wetzel, senior workers' compensation claim specialist - NSI