OWCP: What if my on-the-job injury is caused by someone other than the government?
Here’s a scenario that can happen quite frequently. You are driving a vehicle as part of your government job, and you get hit by another driver. You file a complain for benefits with OWCP and your injury is accepted as an on-the-job injury. Can you sue the other driver that hit you and caused the injury? The short answer is “yes”, but there is information you may need to know before going forward with that cause of action.
First of all, if you believe someone other than the government is responsible for the on-the-job injury, you need to let your Agency and your claims examiner at OWCP know. Based on the circumstances, you may be able to sue the other driver on your own, or you may choose to assign the claim/lawsuit to the United States. Failure to do one of these two options could lead to a forfeiture of your OWCP benefits. The Postal Service is a little different than other federal agencies, so you should research the rules of your particular agency as well.
The tricky part - and one reason that a lot of attorneys practicing in the Personal Injury field don’t often take this kind of claim, is that OWCP rules govern how any recovery should be apportioned between you, the government and your attorney. Here’s the general way any recovery is apportioned.
- Out of the gross recovery, your attorneys’ fees and costs of suit are taken out first. OWCP will only allow a “reasonable” attorney fee - traditional rates of 33% - 40% of the gross recovery will, in all likelihood, be considered reasonable.
- Out of the remaining amount, you will be permitted to retain 1/5th , or 20%.
- After these amounts are subtracted, OWCP will compare the recovery amount remaining to the amount of benefits already paid out to you (called the refundable disbursements). If the refundable disbursements are less than the amount of recovery remaining, then this amount (called the surplus), and which includes government attorney fees, will be yours to keep. However, if you are still entitled to any OWCP benefits at the time of the recovery, those benefits will be reduced (or credited) dollar for dollar against the amount of surplus you retain.
A couple of points - if you received Continuation of Pay (COP), you will not be required to pay this back to OWCP (nor will the amount be counted as a refundable disbursement). This is because COP is not compensation for subrogation purposes.
If your recovery includes recovery for individuals other than yourself (for example, damages recovered for loss of consortium to your spouse), then OWCP has complicated “allocation” rules. These rules are meant to recognize that OWCP is entitled to reimbursement for benefits paid, but also that it would not be just to require you to reimburse the entire recovery.
Third party claims can become very complex, very quickly. A mistake on your part can have significant negative financial repercussions for you. It is best to consult with a lawyer who is familiar with OWCP claims if you have questions about a claim of this nature; contact the Attig Law Firm, PLLC, if you would like to consult with an attorney about your OWCP third-party claim
No post on this website is legal advice, is meant to be legal advice, and certainly does not serve as a substitute for legal advice. Information is power, and this information is not widely or easily accessible to Federal Employees. We are providing this information to give you, the federal employee, more information, more knowledge and more power. However, we are not providing you with legal advice by giving you access to this information.
