Third Party Work Injury Claim North Dakota

I Was Told By Workers Compensation That I Can’t Recover Pain And Suffering. Is This True Even If Another Company That Is Not My Employer Is At Fault For My Injuries?

December 21, 2016

Generally, workers who are injured in North Dakota (so long as their employer is paying for coverage through North Dakota Workforce Safety & Insurance) have their claims handled under workers’ compensation. Of course, there are always exceptions to this general rule, which would be too in-depth for what I am looking to focus on for this particular blog article (plus, it gives me something to write about down the road). But if the injury is caused by a third party, workers compensation is not always the only option. A little background first.

Where To Begin

Under N.D.C.C. § 65-01-01, for all cases that are subject to workers’ compensation in North Dakota, all civil claims (lawsuits) for the personal injury against the employer for the injuries suffered are not allowed. Let’s use an example: Larry Welds is a welder (he was a natural fit for the job) for Metal Magic at a local construction site in Fargo, North Dakota. While at work one day, a beam falls from 30 feet onto his head causing serious debilitating injuries and severe head trauma. Larry works for a great employer who has always taken good care of him and his family. Being they are such a great employer, Metal Magic paid for workers’ compensation coverage through North Dakota, and after Larry properly makes his claim, his case gets assigned to an adjuster at North Dakota Workforce Safety & Insurance.  

Larry (the sole breadwinner in the family) is hospitalized for three months, missing work, and the medical bills are piling up. Larry was told by his doctor that he is not going to be able to work for at least six months. Not to worry. In this scenario, Larry should have no issues getting all of his medical bills paid, and based on the North Dakota workers compensation formula for lost wages under N.D.C.C. § 65-05-09, should have some money coming in to take care of his family. That payment, though, will only be roughly two-thirds of what Larry normally made per paycheck. Like most families, Larry’s wife and kids rely on his full wages to pay all of the family’s bills and for the kids’ activities, and Larry does not have enough vacation time or any disability benefits to cover the difference.

On top of that, Larry learns that he is not allowed to recover any money for all of the pain, suffering, inconvenience, and other non-economic damages he is suffering on a day-to-day basis, as they are not allowed under workers’ compensation. Now what?  

Larry gets to talking to his company’s human resources/safety coordinator Les Getalong, and learns that another company on the job caused the pipe to fall when they did not have it tied down as is required by the safety rules on the job site. Larry is upset because he feels that it is unfair they should be allowed to get away with that, and all he can do is recover his workers’ compensation discounted lost wages and is getting nothing for the pain and suffering he is going through.

Luckily, Larry’s cousin Nathan Severson (shameless plug) is a personal injury attorney in Fargo. Nathan tells Larry that he has a right to bring a suit against the other company for their negligence and to recover monetary damages for his full economic and non-economic damages.  

Third-Party Liability In Workplace Accidents

The investigation into the accident by Larry’s employer shows that another company on the job site, Show Us Your Pipes, violated the safety rules related to tying off pipes to prevent them from falling and potentially injuring others. On the day Larry was hurt, Al Doitlater was in a hurry. Rather than following his company’s safety rules related to securing pipes during a lift, he decided he needed to get done as fast as possible so he could head home and get his weekend started as early as possible.

This direct violation of a safety rule is likely negligence. This allows for an independent action against Show Us Your Pipes for Al’s disregard of the safety rules.  

But what does Larry do? Well, Nathan tells him he will gather all of Larry’s medical records and information about lost wages, and put together a demand letter to send to Show Us Your Pipes, who in turn will turn it over to their insurance company. This demand will ask for full and fair compensation from the company to take care of Larry’s past medical expenses, lost wages, pain, and suffering, and other non-economic damages, as well as all future economic and non-economic damages. If Show Us Your Pipes is unwilling to settle to get the case resolved, a lawsuit can be brought.

What a relief. Finally, Larry has a shot at a full and fair recovery for how this has not only changed his life dramatically but also sent a shock wave through his family’s lives and home. But what about all of that money that workers’ compensation paid for Larry’s medical bills and lost wages?

Payment Back To North Dakota Workforce Safety & Insurance

For all money that North Dakota worker’s compensation paid for Larry’s medical bills and lost wages, they are entitled to a “lien” for any money the organization paid, which is taken out of any settlement or judgment that Larry receives. Under N.D.C.C. § 65-01-09 there is a statutory right of recovery for money paid, which has a formula as well. While this reduces the amount of money that Larry will receive, it is written into the law to prevent “double recovery” to Larry for bills he did not have to pay and for lost wages, he has already recovered.

What Happens To My Employer?

Remember, Larry’s employer has always been great to him. Larry is worried that they are the ones who have suffered here, because he was able to recover money for his injuries, and workers’ compensation took what they paid out of that amount. Well, Larry has nothing to worry about. After worker’s compensation receives their payment, they write Metal Magic letting them know that the amount recovered back by workers’ compensation was credited back to Metal Magic’s account by being deducted from the amount charged against Metal Magic’s experience rating through workers compensation. So Metal Magic also benefits from holding Show Me Your Pipes liable for their negligence. A true win-win for all involved. Many employers may not understand this, but helping their employees to find a third party who is responsible for their injuries actually benefits the employer as well.

What About My Case?

If you are the victim of a workplace accident you believe is the fault of a third party, you may have options for recovery against that company. Each case is different, and this article was meant to summarize very technical laws that you would be best served to get legal advice on. Failure to initiate a case within applicable time periods could forever bar your claims, so if you feel you have a case contact an attorney immediately to discuss your case.

If you have been hurt at work in North Dakota, and want to know if you may have a case against a third party for your injuries and pain and suffering, please give our Personal Injury Team a call at 701-297-2890 or send us an email below. Every initial consultation with Nathan is free of charge, and all cases he takes on for personal injury are done on a contingency fee basis, meaning he only takes a fee if you recover a settlement or judgment.