A worker injured at the construction site has the right to collect workers' compensation benefits from his employer. In addition, if the injured worker is injured as a result of the negligence of someone other than his employer (a third party) the injured worker can also file a claim against or sue the third party for negligence including damages for pain and suffering and related damages. In construction site injuries third party claims give a lien to the workers' compensation insurer.
This means that the workers' compensation insurer can collect out of the injured workers third party recovery the amount they have paid in workers' compensation benefits. This is known as a workers' compensation lien against the third party recovery.
In construction site injuries regarding third party claims and liens there are many defenses and reductions to the workers' compensation lien. Some of these defenses to the lien and reductions to the lien are as follows:
- The Made Whole Doctrine - The made whole doctrine is an equitable defense to the reimbursement rights of the workers' compensation carrier against the third party claim. This doctrine only allows the workers' compensation insurer to be reimbursed only after the injured worker has been fully compensated for all the loss of his injuries and damages.
- Comparative Negligence - Third party claims against the third party (someone other than the employer) are for the negligence of the third party. If the injured worker is partially at fault his third party claim will be reduced by the degree of his or her own negligence. In many states the amount of the workers' compensation lien is also reduced by the amount of the employees comparative negligence.
- Pain and Suffering and Loss of Consortium - Workers' compensation compensates the injured worker for lost wages and medical bills. It does not compensate the injured worker for pain and suffering or for loss of consortium (loss of interaction with family members). For this reason many states have a doctrine whereby the amount of the third party recovery allocates money for pain and suffering and loss of consortium and the workers' compensation insurer cannot collect any of its lien from these allocated amounts.
- Retribution of Attorneys Fees and Costs - Almost all of the states allow the amount of the workers' compensation lien to be reduced by the proportionate share of the attorney's fees and costs that occur in recovering the third party claim.