Third Party Election – PI injury on the Job

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In the State of Washington, if you are injured on the job or in the course of employment by someone who is not an employee or officer of the company for which you work, or, if similarly injured at work or in the course of employment, but by machinery, chemicals, or some other process not specifically developed or designed by your employer, you may have a personal injury or products liability claim, sometimes referred to as a third-party claim. The Department of Labor and Industries (Department) wants its cost on your claim repaid (its lien against your recovery when you sue the person that caused your injury), and  you must complete its Third Party Election form:

A third-party claim is simply a personal injury or products liability claim that is brought against someone other than your employer or an employee of your employer. Typically, the injured worker, upon receipt of the third-party election form has not hired an attorney. Often they have not hired an attorney simply because the accident was so recent. The third-party form itself states that if the injured worker does not hire an attorney, the Department will hire an attorney. It is to the disadvantage of the injured worker to allow the hiring of an attorney by the Department, an attorney over whom he or she has no approval. Additionally, when the Department hires an attorney, I believe that attorney has a greater allegiance or loyalty to the Department.

There are many times disputes over the entitlement of the Department to exercise its lien on any recovery which will arise. For example, the pain-and-suffering component of damages is not subject to a lien. It is important to have selected the attorney yourself so that those damages which should not be subject to the lien are correctly itemized by an attorney that you have hired who has no allegiance to the Department, but instead has complete allegiance to the injured worker.

By statute, the election form must be completed within 60 days of its receipt, and returned to the Department. The attorney you hire, if you elect to hire an attorney as opposed to having the Department hire the attorney, must diligently prosecute the claim on your behalf. If the Department determines that the claim is not being diligently prosecuted, it may petition the Superior Court to take control of the claim.

The Department, regardless of whether you or it hires attorney, will keep a right of reimbursement or a lien against the recovery. It is always worth the effort by you to hire an attorney yourself. Even if there is a serious issue over the liability of the third-party, the statutory scheme in the State of Washington has a built in incentive for you to actively participate in the lawsuit. If the recovery against the third-party is less than the amount of money that has been paid out by the Department, the laws of the State of Washington assure that you will receive some of the recovery.