When we speak of a third party claim, this is a reference to a civil action asserted against a party other than the employee, employer or its representative, as a result of an injury to a worker. By its very nature, in identifying a third party case there needs to exist a third party. While there is no precise formula for identifying a potential third party action, a good starting point is to inquire, “Who or what entity caused the worker’s injury?” If your answer identifies an entity, other than the employer or employee, you have likely identified a potential third party action.
There are many methods by which potential third party claims could be unearthed, including review of injury reports, police reports, OSHA citations and procurement of witness statements. However, one of the most valuable tools for identifying a potential third party claim is via deposition of the worker in the workers’ compensation matter. It is in this setting that the defense attorney has an opportunity to inquire directly into the
factual scenario surrounding the injury, which may serve to identify a potential third party. Similarly, the deposition of eyewitnesses may also serve to eliminate potential third party tortfeasors. As experience dictates, many times workers do not relate their story fully to the employer, physicians, or even their own attorney prior to a thorough deposition. As such, even in the course of what appears to be a routine workers’ compensation deposition, there should be a presence as to the potential of third party claims based upon the worker’s testimony. However, it should be noted that even the most keen questioning at the time of the deposition will be of little avail if the deposition was undertaken at a time too late for pursuing a third party action. |
