Workers’ Compensation Liens and Third Party Lawsuits in Delaware
At Silverman, McDonald & Friedman, we represent injured workers who are seeing to obtain the benefits they need in order to protect and provide for themselves when they are unable to work due to a workplace injury. You may schedule a free consultation with one of our workers’ compensation lawyers in Newark, Wilmington or Seaford, so please contact us today.
A lien gives a person the legal right to another person’s property. A creditor can place a lien against property or a settlement which forces the owner of the property or the person who will receive the money to pay or satisfy the lien before they can sell the property or take payment. Your employer’s workers’ compensation insurer has the right according to Delaware law to place a lien on your settlement from a third party lawsuit to reimburse them for the amount they have paid towards your medical expenses and lost wages.
The Delaware workers’ compensation program pays injured workers or those suffering from an occupational disease, partial wage replacement benefits, medical expenses related to the injury and additional benefits including the option of lump sum payments as compensation for the permanent loss of use of a body part or a permanent disability. In order to be eligible for workers’ compensation, the worker must have suffered the injury in an accident in the workplace in the course of performing their regular work assignments. There are some instances when the fault of the injury does not include the worker, his or her employer or a co-worker. For example, a worker is working for the day at a client’s work site and they become injured using a defective piece of equipment. While the worker would likely qualify for workers’ compensation benefits, they may also be eligible to file a third party cause of action against the manufacturer of the defective equipment, and possibly the property owner at the client’s work site.
Workers’ compensation provides partial wage replacement disability payments, but it does not cover pain and suffering that a third party personal injury claim or lawsuit would cover. The worker would file their workers’ compensation claim, and then they would pursue the third party case. In the meantime, their employer’s workers’ compensation insurer has been paying their temporary disability and medical expenses. When the third party claim is settled, the employer’s insurer can place a lien on the claimant’s settlement to obtain reimbursement for the amount (or a portion of the amount) that they have already paid towards your case.
Subrogation in Delaware workers’ compensation cases and third party personal injury claims
Subrogation is the fancy legal language for the process of the insurance company going after the proceeds of the claimant’s third party legal action for a workplace injury. From the proceeds of the negligence lawsuit, you will simply be paying your employer’s workers’ compensation attorney back for some or all of what they have already paid on your behalf and you keep the remainder after attorney fees. In Delaware, there is a two-year statute of limitations (19.Del. C. § 2363). Interestingly, your employer can pursue compensation from the third party directly if you fail to pursue the claim yourself within 260 days. They are required to give notice of their intent to pursue the third party claim within 30 days.
Our Delaware workers’ compensation attorneys have been representing injured clients for a long time, and we know what it takes to build a successful claim. If you were injured at work and have questions about the claims process, Silverman, McDonald & Friedman can help. To schedule your free consultation with an experienced workers’ compensation lawyer in Newark, Seaford or Wilmington, please call 302-888-2900, or fill out our contact form today.
Attorney Jeffrey S. Friedman joined Silverman, McDonald & Friedman in 2001. He graduated from Widener University School of Law, and is admitted to practice law in Delaware and Pennsylvania, and in several Federal Circuit courts. He areas of concentration include auto accident and workers’ compensation cases. Read more about Attorney Friedman here.