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A new decision, “Pasternack, Tilker et al, LLP”, 2d Dept. (6/10/2015) helps transportation companies with vehicle collisions which also involve a workers compensation claim. Often, the driver files for workers’ compensation and seeks the advice of a lawyer. The workers’ compensation firm accepts the work comp claim, but declines to pursue a negligence claim. If the negligence claim is pursued, the final result can be a much smaller workers compensation claim and substantial recoveries from a third party responsible for the accident. However, if the negligence claim is not pursued the employer will be, through its carrier, the only one paying.

Employer’s Carrier Should Get Right To File Negligence Claim in Vehicle Collisions

In the new case, the worker believed that the compensation firm was pursuing both the compensation claim and a negligence claim. The law firm showed that it had mailed the worker a letter declining to pursue the negligence claim but it could not show that the worker ever received it. The compensation firm has been sued for legal malpractice.

Such situations are far from rare. Vehicle accidents account for a large percentage of all compensation claims and are present on most accidents involving transportation. What could have been done to improve the employer’s position? If there is any chance that a negligence claim can be filed, the carrier can send a “use it or lose it” letter to the worker advising that if the worker fails to start a negligence claim the carrier will get the right to file it. When this occurs, the carrier usually settles with the negligence carrier quickly, as opposed to the drawn out proceeding when the worker sues.

Rapid Negligence Settlements With “Other Guy’s” Carrier Takes Pressure Off Work Comp Claim

Rapid settlements often result in better outcomes for the employer since they often eliminate the financial incentives for a lengthy workers compensation claim. In addition, when the employer’s carrier takes over a negligence claim it is in a position to learn far more of the details of the worker’s activities and medical history, leading to faster and smaller claims.

Employers Should Work With Carrier To Initiate Procedure

But the employer cannot do this on its own; the workers compensation carrier must initiate it. The employer, however, can remain in contact and urge active measures by the carrier. Such interaction usually leads to better overall results.

For decades, malpractice suits against workers’ compensation law firms were all but unheard of. Workers compensation rates in NY were among the lowest in the nation leading to little interest in malpractice suits. However, when a workers’ compensation firm becomes involved in negligence claims that changes. For transportation companies, proactive participation can have many positive returns.

Author: Attorney Theodore Ronca is a practicing lawyer from Aquebogue, NY.  He is a frequent writer and speaker, and has represented employers in the areas of workers’ compensation, Social Security disability, employee disability plans and subrogation for over 30 years.  Attorney Ronca can be reached at 631-722-2100. medsearch7@optonline.net  

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