When you’re hurt on the job, workers’ compensation is usually the only remedy. But sometimes, the injured person has the right to a third-party claim. Third-party claims work differently from typical workers’ compensation claims.
Our experienced Greenville workers compensation lawyer at Bobby Jones Law explains how third-party workers’ compensation claims work in South Carolina.
What Is a Third-Party Workers’ Compensation Claim?
When you’re hurt on the job, workers’ compensation is a primary way for the injured person to quickly obtain medical care and replacement income. The injured employee doesn’t have to prove that the employer or anyone else caused the injury.
They must simply show that they were hurt on the job. Workers’ compensation law determines benefits.
Third party at fault
In some cases, someone other than the employer is at fault for the injury. Most employees interact with third parties during their workday, and these parties are sometimes responsible for negligence or other misconduct. Outside of the workplace environment, the wrongful behavior would give the person a personal injury claim for compensation.
In South Carolina, the right to a personal injury claim isn’t lost because the person is hurt on the job. Instead, a person can have both a personal injury claim and a workers’ compensation claim.
The two proceedings are not entirely independent. There are some differences in how the process works when you’re pursuing both types of claims.
How Third-Party Claims Differ from Standard Workers’ Comp
At a glance, here’s how third-party claims are different from standard workers’ compensation claims.
Difference in How Workers’ Comp and Third-Party Claims Work in SC – Chart
| Workers’ Comp | Third-Party Claim | |
| Who pays | Employer, through their insurance carrier | Someone other than the employer |
| Fault Required? | No | Yes |
| Pain and Suffering? | No | Yes |
| Comparative negligence | No | Yes |
| Lost Wages | 2/3, up to a cap | Total amount |
| Disability | According to a schedule | Determined by the jury, according to the victim’s lasting disability |
| Death benefits | Payable through workers’ compensation | Personal injury claim changes to wrongful death |
Examples of Situations That Might Involve a Third Party
Each situation is unique. Here are some situations where a third-party claim may apply.
- The employer works with a contractor to provide goods or services or complete shared tasks. The contractor or one of their employees is responsible for negligence.
- A product manufacturer designs or produces a defective product. It may be machinery or equipment specifically used for the job, or standard office supplies and items used in daily life. The product malfunctions or otherwise causes harm.
- The employee works at a location that is not owned or controlled by the employer. Someone else manages the facility. The party responsible for the space is negligent in maintaining the area and keeping it free of hazards and dangers.
- A car accident occurs. The party responsible for the car accident is someone other than the employer.
- A public utility malfunctions and causes injury, or the maintenance of a public road is responsible for an accident.
- Someone other than the employer performs maintenance, servicing, or cleaning on things used at or in work.
To bring a third-party claim, you must identify the party responsible and name them as a defendant.
Bobby Jones Law is experienced in handling third-party workplace injury claims. Through personal injury claims, we’ve recovered millions of additional dollars of compensation for clients who are hurt on the job. With a track record of success, we look at all opportunities for you to maximize your case results.
How Third-Party Claims Work in South Carolina
In South Carolina, an employee must report a workplace injury within 90 days to be eligible for workers’ compensation. Reporting the injury starts the process.
For personal injury claims that don’t involve workers’ compensation, the injured person has two years to file their claim in court.
When an injury involves both workers’ compensation and personal injury, the action against the third party must be started within one year. The one-year period begins when the workers’ compensation insurance carrier accepts liability for the claim or makes a payment. If the victim doesn’t file a claim, the right to file the third-party case may transfer to the insurance carrier.
Can You File Both a Workers’ Comp and a Personal Injury Claim?
You can file both a workers’ comp claim and a personal injury claim. Understand that the two claims will interact. The workers’ compensation carrier may place a lien on the third-party compensation. This lien is for the benefits and compensation that they’ve paid through workers’ compensation.
If you bring both types of cases, it won’t be a windfall of double recovery. Instead, the workers’ comp insurer can recover the amounts they’ve paid. The workers’ compensation carrier has a lien on the proceeds of the third-party recovery. There are deductions for attorney fees and trial expenses.
Total cognizable harm – Lien reduction formula
If the injured worker settles their third-party claim for less than its total value, the South Carolina Workers’ Compensation Commission may reduce the workers’ compensation lien.
When applicable, the lien reduction is a ratio of the settlement to the employee’s total cognizable damages at law:
Lien Reduction = Total Lien ✖ Third Party Settlement ∕ Total Cognizable Damages
The purpose of the lien reduction is to be equitable to all parties and serve the interests of justice. The South Carolina Workers’ Compensation Commission approves settlements and may reduce the lien amount if it thinks it’s appropriate.
Notice of Third Party Action
If the injured employee files a third-party action, they must notify the Workers’ Compensation Commission, the employer, and the workers’ compensation carrier. If the workers’ compensation carrier files, they must notify the Workers’ Compensation Commission, the employee, and any other person entitled to sue the third party by personal service.
Notice forms:
S-1 – Notice of Third Party Action Employer Carrier and S-3 – Entitlement to Right of Action
S-2 – Notice of Third Party Action Employee
There are important deadlines for filing a claim and providing notice. Bobby Jones Law can assist you in asserting your claim promptly.
Compensation
If there’s no double-recovery, you may wonder why it’s in anyone’s best interests to bring a third-party claim. There are types of compensation available in the third-party claim that are not available through workers’ compensation. Pain and suffering are one example. Pain and suffering can comprise a significant amount of compensation, even exceeding economic damages in some cases.
Additionally, in a workers’ comp case, lost wage compensation is paid at a percentage of the person’s pre-injury wages for a limited number of weeks. In a traditional personal injury claim, lost wage compensation can be claimed up to the full actual amount. In addition, lost earnings potential and future career path can be claimed.
How it’s calculated can be complicated. A lawyer can provide a personalized review of your rights and options and legal advice about how to proceed.
What Evidence You’ll Need To Prove Third-Party Fault
To prove a third-party claim, you must have evidence that shows the defense is at fault. That means explaining WHO is at fault and WHY. You may need to investigate how the accident occurred and the standards of care. You may need to call witnesses who saw what happened and experts to explain the legal standard of care. The evidence needed to prove third-party fault varies from case to case.
Contact an Experienced Greenville Workers’ Compensation Lawyer
If you have been hurt on the job, it’s important to know how third-party workers’ compensation claims work in South Carolina. Contact an experienced Greenville workers’ compensation lawyer at Bobby Jones Law.
