What is an L&I Third-Party Claim?
A third-party claim is an L&I claim and a Personal Injury claim arising from the same facts. When you have both a personal injury claim and an L&I claim, the personal injury claim is called a third-party claim.
- An L&I Claim in Washington State is filed after a worker has suffered a job injury or occupational disease.
- A Third-Party Claim in Washington State L&I is an on-the-job injury caused by someone other than your employer or co-worker.
- Third-Party Claim Example in WA L&I:
- Example one: A delivery driver who was rear-ended on the highway has two claims. He has an L&I claim because he was injured while on the job. He also has a third-party claim because the same facts resulted in an injury caused by someone other than his employer or a co-employee.
- Example two: A subcontractor injured by the general contractor or a different sub has two claims. He has an L&I claim for the job injury and a third-party claim because of who caused the injury.
The Good and Bad of Third-Party Workers’ Compensation Claims and Lawsuits
A Third-Party Claim with an L&I Claim can be a good thing.
- There are two claims, both L&I and third-party. Two is better than one, right? What could go wrong? These claims are tricky. Some third-party claims can be worth a lot of money if you handle them right.
- Your claim is only as good as your facts and the work you and the people helping you put into it.
- Third-party claims will affect the L&I claim and not always in a good way.
Third-Party Workers’ Comp Claims are not all good.
The downside of a third-party claim is that L&I or the self-insured employer has a lien on your third-party recovery. This is also known as a workers comp lien on a personal injury settlement. That means because L&I or the Self Insurer has paid money on your L&I claim, they will get some of that money back from you when you settle your third-party claim. The exact amount they get from you is subject to the worksheet formula and possible compromise. Sometimes, the amount L&I or the self-insured employer takes is shockingly large. Sometimes, the third-party settlement will ruin the remaining L&I claim because it creates an offset and takes away L&I benefits. Understand how the offset formula applies to your L&I claim BEFORE settling your third-party claim.
An L&I Claim and a Third Party Claim Affect Each Other.
- They are two different claims based on the same facts. However, they will affect each other in significant ways.
- A third-party settlement will affect ongoing and future L&I benefits because L&I gets reimbursed for a percentage of the money they have paid. Sound simple? It’s not. The third-party settlement might ruin your L&I claim. Get your lawyer involved here to reduce or eliminate any deficiency. This is important!
- L&I orders affect the Third-Party claim.
- A bad order or unfavorable IME can result in a big problem for the third-party claim.
- A favorable order and good medical opinions can be very helpful to the third-party claim.
- This is way more important than it may look. Be careful. Pay attention now, or you might get a rude surprise later.
- A third-party claim can create a deficiency and ruin the L&I claim. This can cut off your medical care, time loss, settlement, and other benefits.
- L&I or the self-insured can minimize and oppress an L&I claim, severely limiting third-party recovery. Don’t let this happen.
- Working to develop the L&I claim fully can be very helpful to the third-party claim and the bottom line.
- Get advice about his. It is more important than you think.
Be sure your Third-Party attorneys understand L&I liens and offsets.
Some personal injury attorneys are clueless about this interrelationship between L&I and Third-Party claims. This could cost you a lot of money. These lawyers typically are personal injury lawyers who “aren’t handling your L&I claim.” While that is an OK relationship on its face, it is very bad if that attorney does not know that when the PI claim settles first, the PI claim can ruin the L&I claim. Insist your third-party personal injury attorney explains in writing how the offset works, how much it will be, and how it affects your ongoing L&I claim benefits. Be sure your attorneys work to reduce the offset as part of the third-party settlement. If they cannot reduce the offset or if they take no interest in what you’re saying, you have the wrong attorney. They could unintentionally or otherwise ruin your L&I claim. Don’t let your third-party attorney do that. Be careful. Read this section again if you have any questions or concerns.
Third-Party Election Form – L&I.
The third-party election form is a formal notice you give to L&I, stating whether you believe you have a third-party claim. Even though L&I is asking, as a practical matter, you don’t have any choice whether you have a third-party claim. The facts decide that. The third-party election form also designates who will be in charge of the third-party claim, you or L&I.
Why Did L&I Send Me a Third-Party Election Form?
- L&I sent this form because they suspect you have a third-party claim.
- You have a third-party claim if you were injured by something or someone, not your employer or co-worker. RCW 51.24.030
- The statute, RCW 51.24.070, allows L&I or the Self-Insurer to require the injured worker or beneficiary to choose which lawyer will pursue the third-party claim. As a practical matter, this means that either you choose a lawyer to represent you on the third-party claim, or L&I will assign you one of their lawyers over whom you have no control. This one’s a no-brainer: choose your own lawyer if you can get a good one to take your case.
- L&I has spent money on your claim. A successful third-party claim allows L&I to get some of that money back. If you get lawyers involved, they should work to keep your L&I repayment reasonable. In other words, do not give L&I too much of your third-party money. Get your lawyer to help.
How Do I Complete this Third-Party Election Form?
- Fill it out and send it in. If you have a third-party claim, you will want legal representation. Find your own lawyer and have them do it for you. They can see the big picture and be very helpful with this.
Option A puts you in charge of your third-party workers’ comp claim and its future.
- Option A is usually the wise choice.
Option B, you give up your right to take legal action. L&I takes over your third-party claim.
- If L&I chooses to pursue your third-party claim, it will hire a personal injury attorney for you. Some lawyers know what they are doing, and some are inexperienced. If you let L&I choose your attorney, you take your chances.
- Your choice is which attorneys will handle the third-party claim: yours or L&I’s. This is a no-brainer; you will want your own attorneys. You will pay one of these lawyers out of the third-party recovery, so make it the lawyers who represent you. Choose option A.
- Only your lawyers will have your best interests in mind. The L&I lawyers will be working for L&I. That conflict of interest could cost you money.
- Under either option, L&I will have to pay part of your attorney fees if you get some of their money back when you win your third-party claim.
- Pick good lawyers for yourself. Consult an attorney now and get an opinion to help with your third-party claim decisions.
What if I Have a Third-Party Claim but Don’t Want It?
You don’t have this choice. L&I has paid money on your claim, and they want it back. L&I will pursue all good third-party claims, like it or not. Your only choice is which lawyers will handle your third-party claim, yours or theirs.
Is there a Deadline for Returning this form?
- There is a 60-day deadline. However, L&I’s initial request often doesn’t start this clock because their letter may not rise to the level of an RCW 51.24.070 demand. Just the same, don’t sit on this. You might have more time than L&I initially says you have; however, since you need to decide, do it now. If you need help, call us for a free strategy session.
WISHA and OSHA in Washington State Third-Party Claims.
WISHA and OSHA regulations protect workers. Employers are required to furnish a work environment free from injury-causing hazards. Violations of the regulations are evidence of negligence and can be very helpful in third-party lawsuits. Washington Industrial Safety and Health Act (WISHA) regulations can be found at WISHA. Occupational Safety and Health Act (OSHA) regulations can be found at OSHA.
Has Medicare Made Payments in Your Case?
If Medicare has made payments in your injury case – beware. They may have a legitimate interest in some of your settlement money. They want to be paid back the money they have paid you.
The law allows Medicare to be repaid from your settlement. Before you agree to any settlement for your job injury claim, understand what Medicare wants for past and future medical care. Get your lawyer to negotiate with Medicare.
How Does a Third-Party Lawsuit Work with L&I?
- A worker is injured on the job by someone or something, not his/her employer or co-employee.
- The worker and his doctor file an L&I claim within the Statute of Limitations.
- The worker and his lawyer file a third-party claim within the Statute of Limitations.
- Win both and work out L&I’s subrogation rights.
Statute of Limitations (SOL) for L&I Claims and Third-Party Lawsuits
- L&I SOL – one year to file the L&I injury claim and longer for occupational disease. See Statute of Limitations (L&I) for details.
- Third-Party SOL – three years is your deadline to file a negligence-based third-party claim. This is an important deadline. Get the lawsuit filed on time. However, there is no SOL that runs against the State of Washington. That means they can bring a third-party claim at any time. They may be able to help if you miss your statute of limitations.
What if I’m Not at Fault for My Injury?
- L&I claim? Not being at fault means nothing. All L&I claims are no-fault claims, so your fault or lack thereof means nothing to the L&I claim. The fault of the person who hurt you also means nothing to the L&I claim.
- Third-party claim? Third-party claims are negligence-based, so fault or lack thereof is significant. Not being at fault is a good thing. Having the person who hurt you be at fault is both a good thing and a requirement. To win a third-party claim, you must prove that the third party’s negligence (fault) contributed in some way to your injuries.
Third-Party Workers Comp Claim Examples.
If you are on the job and any of these happen to you, you may have a third-party claim and a workers‘ compensation claim.
- Vehicle accident caused by another driver or road hazard
- Defective equipment or product
- Accident offsite of employers’ usual place of business
- Construction Site Injury to include
- Injury to an employee of a subcontractor caused by the general or another subcontractor, or injury to an employee of a general contractor caused by a subcontractor
- An unlicensed contractor who hires a worker
- Unsafe worksite
- Unsafe buildings or stairs
- Exposure to toxic things
- Temporary Agency Employee
Can I Sue a Third Party if I Have an L&I Claim?
Yes, that’s what we’re talking about. You can sue a third party even if you have an L&I claim. Your claim against them is a third-party lawsuit. The third party is a person who is not your co-employee and not your employer.
Can I Sue My Employer or Co-worker for an On-The-Job Injury?
No. The general rule is that you cannot sue your employer or coworker for a job injury because they are not third parties. Instead, you can file an L&I claim. Filing an L&I claim does not mean you are suing your employer.
There are three exceptions to this rule:
- Temporary Employee. Temporary employees can sue their job site employer but not their temporary agency employer. See Temporary Agency Employee Lawsuits
- Intentional Injury. You can sue your employer or a co-employee if the injury was intentional. The statute of limitations for an intentional injury is 2 years. With an intentional injury on the job, you also have an L&I claim with its own statute of limitations. For more information, see Can I Sue My Employer?
- Non-injury lawsuits. You can sue your employer for employment law concerns such as discrimination, overtime, pay issues, etc. See: Workers Compensation is Not Employment Law
How to File a Third-Party Claim.
Here is the information required to file a third-party claim:
Two things must be done to handle a third-party claim effectively.
- File a lawsuit on time.
- Filing a lawsuit tolls the statute of limitations and commences the lawsuit. You will probably want legal counsel. Get good ones and be sure they understand L&I claims and the third-party offset.
- Third-party election form completed and returned before the deadline
- Complete and file a third-party election form with the Department of Labor and Industries. See the Third-Party Election Form for details and a link to the form.
What is My Third-Party Claim Worth?
L&I Third-Party Recovery Worksheet
To determine the value of a third-party claim, use the interactive online worksheet formula. To figure the value, you must know the following:
• Gross Recovery
• Benefits Paid
• Attorney Fees
• Costs
Fill in the numbers, and the interactive worksheet formula will work. If your numbers aren’t set yet, you can only make estimates. You can also call or e-mail us, and we’ll help you calculate based on the figures you supply.
You will not know these numbers early on in your case, so the case value will be a guess.
Do I want Legal Representation for a Third-Party Lawsuit? Can I DIY?
- If L&I believes you have a third-party case, you will have legal representation. You have no choice about that. Your choice is who picks your lawyers: you or L&I.
- There may be a lot of money involved here. It makes a difference who represents you. Don’t let L&I’s lawyer represent you – they have a conflict of interest.
- If you miss the election deadline, contact your own L&I lawyer. There may still be time to complete this.
- If you ended up with an L&I assigned lawyer and now want to choose your own, you may be able to change lawyers. See RCW 51.24.070, right of reelection.
- A virtual army of corporate and insurance lawyers usually represents third-party corporations. If you hope to do well, consult your own third-party lawyer. A good lawyer will give your case status and get the insurance company to take you seriously. The consultation is free; you can, after that, decide whether to do it yourself or hire lawyers. The lawyer will look at your case from every angle and give you their expert opinion about your best course of action.
Do you still have questions? Get answers from attorneys who know L&I and Third-Party Law. See: Personal Injury Attorneys
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