By: Christopher Capalbo, Esq. and Kelsey Daniel, Esq. of Capalbo Daniel, PC
There is no need to fear this spooky presentation. There is no need to fear this spooky presentation. There is no need to fear this spooky presentation. Shoot! We said it three times.
In the world of workers’ compensation subrogation, the role of the insured employer, and how the subrogating carrier stands in the shoes of the employer, is of utmost importance. In some states, the employer’s actions directly can effect the percentage of recovery. Even in states unaffected by arguments of employer fault, controlling the narrative of the case through the employer’s reports and witnesses, is a large piece of the puzzle to ensure a successful recovery. This presentation, as part of the workers’ compensation track of the National Association of Subrogation Professionals 2025 Annual Conference in San Diego, CA (October 26-29), will focus on all the frightening aspects of dealing with and controlling the employer involvement in our subrogation cases to maximize our recovery outcomes.
As a subrogator in the field of WC subro, we all know that one of the biggest bumps in the night that we fear is our employer witnesses and controlling the narrative of the case through their eyes. It is critical that as early as possible you turn on the lights and vet with the employer the facts of the case, the critical witnesses, the parties with the most knowledge, and any documentation that they may have concerning the facts at play in the case.
The best time to do that is at the three-point contact phase of the workers’ compensation case. This is the phase when, as most of us in the industry know, the handling work comp adjuster reaches out to the employer and the injured worker to vet the facts of the accident and resulting injuries. This contact occurs at the outset of the case when everyone’s memories are the freshest. Also being at the outset, the employer is not fatigued by the claims process and is most likely to be willing to cooperate in the gathering of facts and documents to make a successful subrogation recovery.
In order to assist the examiner that takes the employer’s statement, you should consider providing a check list of subrogation topics to discuss if the case facts fit the mold. Here is a sample of what such a list might look like:
Motor Vehicle Cases
In motor vehicle cases, you want to vet with the employer damages to the vehicle, repair documentation concerning estimates and receipts, photos, videos, accident reports, passengers, witnesses, vehicle preservation and black box data (if cost effective), police reports, etc.
Premises Liability Cases
In premises liability cases, you want to vet with the employer lease agreements and/or contracts that might effect subrogation recovery, getting photos of the accident or condition that caused the incident, details on the property owner, property manager, maintenance company, janitorial company or any other party that might have control over the premises or condition, witnesses, videos, prior accidents or incidents, reporting of the property defect beforehand, employer knowledge of the condition, etc.
Construction Cases
In construction cases, you want to vet with the employer contracts or policies of insurance that might prevent subrogation (insurance, wrap, OCIP), contract clauses that might prevent subrogation (waiver of subrogation, hold harmless or indemnity agreements), photos, videos, witnesses, loss control reports, who the relevant general contractor and subcontractors are, is there a third party safety vendor over seeing the project, all job reports and notes, OSHA’s involvement in the case and potential investigation into the employer and other exposing parties, all our employees that were on site at the time, who was our foreman or site superintendent overseeing the job or injured worker at the time of the accident, preservation of evidence (if applicable), etc.
Dog Bite Cases
In dog bite cases, you want to vet with the employer protocols in place concerning entering property and investigating the presence of dogs, knowledge of dogs, training on dogs, contractual relationships with the dog owner that might prevent subrogation, photos, videos, witnesses, details on injured workers’ job duties, prior notice concerning subject property or dog, etc.
Assault and Battery Cases
In assault and battery cases, you want to vet with the employer accident reports, incident reports, police reports, prior knowledge or history concerning the defendant aggressor, defendant aggressor’s employer and or employment status, witnesses, photos, videos, any other parties or people with knowledge that the aggressor had a prior history that was known or should have been known to employer or agents responsible for him, etc.
Product Liability Cases
In product liability cases, you want to vet with the employer purchase records, service records, maintenance records, user manuals, receipts, instruction manuals, age, modification, serial number, model number, training records, seller, manufacturer, company or party responsible for maintenance, modifications to machine at any time by anyone, rental company, lease agreements, inspection reports, preservation of evidence, photos, videos, etc.
This very important part of vetting the employer’s knowledge about an accident is only part of the topics that Kelsey Daniel, Esq. and I will be covering during our presentation. We will be covering all aspects of an employer’s role in the prosecution of a workers’ compensation subrogation case. We hope to see you there and promise not to scare you away.