Can the employer take any action against the BWC should it feel the subrogation issue was settled prematurely or for a lot less value than what the employer is being assessed in reserves or actual costs?
If an employer feels the bureau abused its discretion, they can file a mandamus action, which essentially asks for judicial review. That can be pretty hard to prove, though. If the bureau had any evidence of quality to support their decision, then it would be difficult to overturn the settlement.
But if they did it simply because the employer didn’t show any interest, and the attorney for the injured worker didn’t want to pursue further arguments, then that could be one of the reasons you would file a mandamus. If the employer believes the bureau abused its discretion, the employer should seek legal counsel and ask them to look into filing a mandamus.
What else do employers need to know about subrogation?
Employers have to be cognizant of the potential of subrogation, and if there has been a suit initiated, they should take the time out of their schedules to call the bureau, especially the claims service specialist or the bureau’s subrogation specialist and let them know their injured employee has filed an additional lawsuit. The bureau will then attach itself to that lawsuit.
Employers need to be sure they are not caught unaware until it was too late. Even if they have a third-party administrator that should be monitoring these claims and advising them, it should serve as a warning to employers that they need to recognize these claims and not just assume their TPA will take care of everything. Employers need to take some responsibility of their own risks.
In some other states, a TPA can be sued if it doesn’t perform to expectations. But in Ohio, the bureau still ultimately holds the employer responsible for their account. The TPAs are not licensed by the bureau. They are recognized as the employer’s legal representative, which allows the bureau to send notice of hearing, claims information to their TPA and give them access to claims and risk information at the BWC. But aside from this, if something happens to that employer’s account, the state will hold the employer ultimately responsible.
The bottom line is to protect the bottom line. Even if an employer has a TPA, they still need to stay on top of their workers’ compensation program and all the claims filed against their policy.
Richard DeStefano is a consultant with Ohio Employee Health Partnership.
