A work accident caused by a third party

It is the route Act 45-1935 leaves open when the one who caused your work injury was not your employer but another person or company: the driver who hit you while you were making a delivery, another company’s contractor on the same site, the maker of a defective piece of equipment. Against the insured employer the Fund’s compensation is the only remedy. Against the responsible third party it is not: you can claim damages in court. The Act organises that claim around a date — when the Administrator’s resolution became final — and gives the Fund the first chance to sue by subrogation.

It applies to the injured worker or employee, and to their beneficiaries in case of death, where the injury, occupational disease or death giving right to compensation under this Act arose from circumstances making a third party responsible. The practical condition is that the Fund be obliged to compensate or provide treatment in your case, because that is where the Administrator’s subrogation right is born and it is from the finality of its resolution that the terms run. The Act does not define who counts as a third party beyond that formula, nor does it exclude any category of third party by name.

• The right arises where the injury, occupational disease or death came about under circumstances making a third party responsible, in cases where the Fund is obliged to compensate in some form or to provide treatment (Article 29).Verified against the official source
• The worker or their beneficiaries may claim and obtain damages from the responsible third party within the year following the date the Administrator’s resolution of the case became final (Article 29).Verified against the official source
• The worker may not file suit nor settle any cause of action against the responsible third party until ninety (90) days have passed from the Administrator’s resolution becoming final and enforceable (Article 29).Verified against the official source
• The Administrator may subrogate in your rights and bring proceedings against the third party in your name within those same ninety (90) days, and must notify you in writing within five (5) days of the action being started (Article 29).Verified against the official source
• If the Administrator fails to sue the third party, the worker or their beneficiaries are completely free to bring the suit for their own benefit, without being obliged to reimburse the Fund the expenses incurred in the case (Article 29).Verified against the official source
• No settlement between the worker and the third party within the ninety (90) days, or after that term if the Administrator already filed suit, has value or legal effect unless the expenses incurred by the Fund are satisfied first (Article 29).Verified against the official source

• The Fund Administrator’s resolution in your case, because the date it became final and enforceable is where both the year to claim and the ninety-day wait start (Article 29).
• The written notice the Administrator must send you within five days of the action being started, if it decides to sue the third party by subrogation (Article 29).

1. 1

   Step 1: Why the third party can be sued

   Article 18 says that when the employer insures its workers under this Act, the right to obtain compensation shall be the only remedy against the employer, even where the maximum compensation or benefits were granted. That exclusivity belongs to the employer and to no one else. Article 29 opens the other door: in cases where the injury, occupational disease or death giving right to compensation came about under circumstances making a third party responsible for that injury, disease or death, the injured worker or their beneficiaries may claim and obtain damages from the responsible third party. Collecting from the Fund does not cancel that right: it puts it on a calendar.

2. 2

   Step 2: The date everything hangs from

   It is not the date of the accident nor of the medical discharge: it is the date the Administrator’s resolution of your case became final and enforceable. The article’s two terms come off it. One is yours: you may claim and obtain damages from the responsible third party within the year following that date. The other is the Fund’s: within the ninety days following that same date the Administrator may subrogate in your rights and bring proceedings against the third party in your name. Since the article itself forbids you to sue or settle until those ninety days have passed, what is left of the year after day ninety is the window in which you can act on your own. That is arithmetic on the two terms, not a separate rule, but it is worth being clear about before the year runs out.

3. 3

   Step 3: If the Fund sues the third party

   The Administrator subrogates in your rights and brings the proceeding in your name. Three things protect you inside that suit. First, you are a party: the article says the worker or their beneficiaries shall be a party in every proceeding the Administrator establishes under these provisions. Second, they must tell you: it shall be the Administrator’s obligation to notify you in writing of that proceeding within five days of the action being started. Third, the money left over is yours: any sum obtained as a result of the action, or by judicial or extrajudicial settlement, in excess of the expenses incurred in the case shall be delivered to the injured worker or the beneficiaries entitled to it. What the Administrator recovers for the Fund goes in for the benefit of the particular group in which the occupation or industry you worked in was classified.

4. 4

   Step 4: If the Fund does not sue

   This is the paragraph most worth knowing and the least known. If the Administrator fails to file suit against the responsible third person, the worker or their beneficiaries shall be completely free to bring that suit for their own benefit, without being obliged to reimburse the State Insurance Fund for the expenses incurred in the case. Read it twice: no obligation to return to the Fund what it spent on your treatment and your compensation. That waiver does not appear where the Administrator did sue, nor where you settle early; it is specific to the situation where the Fund let its chance pass.

5. 5

   Step 5: Settlements, in both directions

   The Act protects the Fund from having its reimbursement settled away underneath it, and protects you from the Fund settling over your head. On the Fund’s side: no settlement between the injured worker or their beneficiaries and the responsible third party, within the ninety days following the decision becoming final, or after that term has expired if the Administrator has filed its suit, shall have value or legal effect unless the expenses incurred by the Fund are satisfied first; and no judgment shall be entered in suits of this nature, nor any settlement approved, without express reservation of the Fund’s right to reimbursement of all expenses incurred. The clerk of the court hearing the case must notify the Administrator of any order affecting the parties’ rights and of the final disposition. On your side: the Administrator may settle its rights against the third party, but no extrajudicial settlement may affect your rights or your beneficiaries’ without your express agreement or approval.

6. 6

   Step 6: Your rights under this Act cannot be assigned or attached

   Article 30 says the rights and actions born of this Act may not be negotiated, transferred or assigned, nor be the object of attachment or third-party claims, and that no judge shall authorise any order to such ends. There is one exception and it runs the other way: the Administrator shall deduct for reimbursement, from any of the benefits you are entitled to under this Act, the payments made to you under another government insurance programme. That deduction is made upon presentation of an invoice certified by the Director of the office, bureau or agency administering that programme, and never for an amount exceeding the balance of the benefits you are entitled to at the moment of liquidation.

7. 7

   Step 7: What a lawyer costs under this Act

   Article 33 is worth knowing because it changes the arithmetic. Workers do not need to appear assisted by a lawyer before the Fund Administrator or the Industrial Commission for the handling, liquidation or resolution of their cases. If they choose to obtain a lawyer’s services, the Industrial Commission fixes the percentage to be paid, charged to the State Insurance Fund. In cases under review before the courts and in mandamus cases authorised by this Act, the court fixes the fees the lawyer should equitably receive, also charged to the Fund. And the last paragraph closes it: the fees fixed by the Industrial Commission or the court shall be the only ones the lawyer providing services may receive. The damages suit against the third party, by contrast, is an ordinary civil suit and this Act fixes no fees for it.

8. 8

   Step 8: Meanwhile, your treatment is still the Fund’s

   A responsible third party existing does not take you out of the compensation system. Article 5 keeps the obligation: during the period of incapacity the injured worker shall let themselves be treated and examined by a competent physician designated by the Administrator, and if the Administrator does not provide adequate assistance, the worker may go before the Industrial Commission, which after investigation by a physician designated for the purpose shall order the assistance the case requires, and the Administrator shall comply with the order. The same article recognises your right to designate a physician or surgeon at your own expense to witness your examination or to treat you. And if you disagree with the Administrator’s decision on your case, Article 9 gives you thirty days to appeal to the Industrial Commission from being notified with a copy of the decision.

The claim against the responsible third party is a civil suit and goes to court. The subrogation, the five-day notice and the reimbursement reservation are handled by the Administrator of the State Insurance Fund Corporation. If what you want is to challenge the Administrator’s own resolution on your case — and remember it is its finality that starts this article’s clocks — the forum is the Industrial Commission, a separate agency. The Act publishes no addresses, telephones, forms or portals, and we do not guess government internet addresses.

• Counting the year from the day of the accident: it runs from when the Administrator’s resolution became final, not from the accident nor from the discharge.
• Suing the third party before the ninety days pass: the article expressly forbids it until that term elapses.
• Settling with the third party within the ninety days without satisfying the Fund’s expenses: that settlement has no value or legal effect.
• Believing that collecting from the Fund cancels your right against the third party: Article 18 makes compensation exclusive only as against the insured employer.
• Thinking that if the Fund sues you are out of the suit: you are a party, and must be notified in writing within five days of the action being started.
• Believing you must always return to the Fund what it spent: if the Administrator failed to sue, you are free of reimbursing those expenses.
• Expecting the Fund to tell you if it decides not to sue: the Act only imposes notice when it does sue.
• Accepting an extrajudicial settlement by the Administrator with the third party without your express agreement: the Act says it cannot affect your rights.
• Assuming you can assign or pledge your claim under this Act: Article 30 forbids it and denies judges the power to authorise orders to that end.
• Forgetting that what you collected under another government insurance programme is deducted, upon a certified invoice from that programme’s director.
• Letting the year run out waiting for the Fund to decide: the year is yours and runs from the same date.
• Paying a lawyer separate fees for the case before the Industrial Commission: those fixed by the Commission or the court are the only ones they may receive.

These are the government pages this guide is based on.

• Corporación del Fondo del Seguro del Estado (CFSE)

  Fondo del Seguro del Estado

  bvirtualogp.pr.gov