Third-Party Claims:
Suing Beyond BWC

Your work injury may be worth far more than BWC pays

Ohio workers’ compensation is a no-fault system. You receive medical care and partial wage replacement regardless of who caused the injury — but in exchange, you generally cannot sue your employer. What many injured workers do not realize is that this trade-off applies only to your employer. If a third party — someone other than your employer or a co-employee — caused or contributed to your work injury, you may have a separate personal injury claim with significantly greater recovery potential.

Under Ohio Revised Code § 4123.93, your right to pursue a third-party claim is independent of your workers’ compensation case. You can — and should — pursue both simultaneously. In Mike’s 49 years of practice, third-party claims have produced some of the largest recoveries for injured workers, often doubling or tripling the total compensation compared to a BWC claim alone.

Common third-party scenarios

Third-party claims arise whenever someone other than your employer or a fellow employee causes your work injury. Mike has handled thousands of these cases across virtually every industry in Ohio. The most common scenarios include:

How the two claims work together

Your BWC claim and your third-party claim are separate legal proceedings that run concurrently. Understanding how they interact is essential to maximizing your total recovery:

• BWC provides immediate benefits: Medical care, TTD, wage loss, and other BWC benefits begin flowing as soon as your claim is allowed — regardless of whether the third-party case has been filed or resolved.
• Third-party claim proceeds through civil court: Personal injury cases take longer — typically 18 months to 3 years — because they involve investigation, discovery, depositions, and potentially trial.
• BWC does not stop benefits: Filing a third-party lawsuit does not affect your BWC benefits. The BWC continues paying as long as you remain eligible, and the two cases are handled independently.
• Settlement coordination: When the third-party case resolves, any pending BWC settlement must be coordinated to account for subrogation obligations and to ensure you receive maximum total compensation.

Subrogation: what the BWC gets back

When you recover from a third party, the BWC has a legal right to be reimbursed for the workers’ compensation benefits it has already paid on your claim. This right is called subrogation, and it is governed by R.C. 4123.931.

Here is how subrogation works in practice:

The subrogation calculation is complex and is one of the most important areas where an experienced attorney adds value. Under R.C. 4123.931, the BWC’s subrogation interest is reduced by the injured worker’s proportionate share of attorney fees and litigation costs. Additionally, if the third-party recovery does not fully compensate you for all of your damages, the BWC’s subrogation may be further reduced.

What damages can you recover in a third-party claim?

Unlike workers’ compensation, a third-party personal injury claim allows you to recover the full spectrum of damages available under Ohio tort law. This includes categories of compensation that are completely unavailable through the BWC:

• Pain and suffering: Physical pain, discomfort, and limitations caused by your injury — the single largest category of damages in most personal injury cases and completely unavailable through BWC.
• Full lost wages and earning capacity: BWC pays only a percentage of your wages. A third-party claim can recover 100% of past and future lost earnings, plus diminished earning capacity if your injury limits the type of work you can perform.
• Loss of enjoyment of life: Compensation for activities, hobbies, and quality of life you can no longer enjoy because of your injury.
• Loss of consortium: Your spouse may have an independent claim for the impact the injury has had on your marital relationship.
• Punitive damages: In cases of extreme recklessness or willful misconduct, the court may award punitive damages to punish the third party and deter similar conduct.

Statute of limitations for third-party claims

The statute of limitations for a personal injury claim in Ohio is generally two years from the date of injury under R.C. 2305.10. For product liability claims, the statute may differ depending on when the defect was discovered. These deadlines are separate from — and in some cases shorter or longer than — your BWC filing deadlines.

Under R.C. 4123.931, the BWC or a self-insured employer has an automatic subrogation right against the third party. The BWC has its own interest in the third-party claim and must be notified of all third parties and any proposed settlement.

Why you need an attorney who handles both

The intersection of workers’ compensation and third-party personal injury law is one of the most complex areas of Ohio practice. An attorney who handles only personal injury cases may not understand BWC subrogation, and an attorney who handles only workers’ comp may miss the third-party claim entirely.

Mike evaluates every work injury case for potential third-party claims. Over 49 years of practice, he has coordinated thousands of concurrent BWC and third-party cases, ensuring that subrogation is properly calculated, settlements are coordinated, and injured workers receive the maximum total recovery available under Ohio law.