“We Have Your Back”

By: Jeffrey A. Misenheimer

            The attorneys at Lewis & Roberts consider all of the possible contingencies of each case in order to protect the interests of our clients.  In North Carolina workers’ compensation cases, one of those contingencies is when a third-party causes a plaintiff’s workers’ compensation injury.  In North Carolina, a workers’ compensation defendant has a right to pursue monies recovered by the plaintiff in a civil proceeding brought against the at fault third-party.  In such a situation, our attorneys seek to protect the “lien interest” of our clients. 

            A lien may arise if an employee is injured due to the negligence or intentional tort of a third-party. In this case, the injured worker may pursue a workers’ compensation claim and a claim against the third-party tortfeasor. The Workers’ Compensation Act gives the employer and its workers’ compensation insurer a lien on payments made to the injured employee by any third-party tortfeasor, to the extent of the workers’ compensation benefits paid to the employee.

            N.C.G.S. §97-10.2 of the Workers’ Compensation Act defines the rights and remedies of employees and employers against third-party tortfeasors. Section 97-10.2 was designed to secure prompt, reasonable compensation for an employee and to simultaneously permit an employer who has settled with the employee to recover such amount from a third-party tortfeasor.

            Pursuant to N.C.G.S. §97-10.2(j), once a settlement between an employee and a third-party tortfeasor has been finalized so that only performance of the agreement is necessary to bind the parties, either party may petition a superior court to determine the subrogation amount. A trial judge has discretion under this provision to adjust the amount of a workers’ compensation lien, even if the result is a double recovery for the plaintiff. 

            N.C.G.S. §97-10.2 gives the employee, or his/her personal representative if he/she is dead, the right to pursue a claim against the third-party to tortfeasor for twelve months after the date of injury.  If settlement is not made and summons is not issued within this twelve month period, and if the employer has filed a written admission of liability with the Industrial Commission, then either the employee or the employer shall have the right to proceed to enforce the liability of the third-party up through sixty (60) days before the running of the applicable statute of limitations for the underlying third-party case.  Thereafter, the right to pursue the action against the third-party reverts back to the employer or his/her personal representative. 

Any third-party recovery shall be disbursed by Order of the Industrial Commission in the following order of priority: (1) payment of court costs and/or reasonable expenses incurred by the employee in litigation of the third-party claim; (2) payment of attorney fees (fee on subrogation interest of employer shall not exceed 1/3 of the amount recovered by the third-party; (3) reimbursement of the employer for all benefits by way of compensation or medical compensation expense paid; and (4) payment of the amount remaining to the employee or his personal representative.

            N.C.G.S. §97-10.2(j) provides the following factors which the trial judge must consider: (1) anticipated cost of prospective compensation the employer or workers’ compensation carrier is likely to pay to the employee in the future; (2) the net recovery for plaintiff; (3) the likelihood of the plaintiff prevailing at trail or on appeal; (4) the need for finality in the litigation; and (5) any other factors the court deems just and reasonable.

            Attorneys at Lewis & Roberts have extensive experience in handling subrogation cases on behalf of our clients.  If there is a liable third-party in the connection of a workers’ compensation case, please reach out to one of our attorneys to protect your interests.