The employer/carrier’s right of subrogation is detailed in Labor Code Sections 3850 through 3865. One of the principles behind subrogation is the avoidance of double recovery, i.e. not allowing the worker to recoup workers’ compensation benefits and civil damages. This policy is vindicated by allowing the employer/carrier an independent right to proceed against a 3rd party to recover benefits paid to or on behalf of a worker. Labor Code Section 3732.
The most commonly cited goals in pursuing a subrogation action, include the right to reimbursement and the right to credit. Reimbursement is the recoupment of monies paid to or on behalf of an injured worker. Credit results in a reduction of the employer’s obligation to pay workers’ compensation benefits by the amount of the worker’s net recovery from the civil action.
In addition to the foregoing, a third and often overlooked benefit of prosecuting subrogation actions is discovery that may be useful in defending the workers’ compensation claim. Discovery in workers’ compensation proceedings is limited with the main discovery tools being depositions and subpoenas. However, in civil proceedings, discovery is much more expansive including the request for production of documents, requests for admissions, and interrogatories, each requiring written verified responses. From this discovery process much more is usually learned of the worker’s injury allegations which can come into and, be utilized to defend the workers’ compensation claim, whether or not reimbursement or credit is honored in the civil arena. The interaction between the two should not be overlooked. |
