The Ohio Supreme Court has recently ruled that a statutory subrogee’s claim under the Ohio’s Worker’s Compensation Act was not derivative of the claimant’s tort claim and therefore, not barred by the two year statute of limitations. See Ohio Bureau of Workers’ Compensation v. McKinley, et al. (2011) 130 Ohio St. 3d 156.
In this case, the injured employee or “claimant” (as defined by O.R.C. § 4123.93(A)), made a recovery from a “third party” (as defined by O.R.C. § 4123.93(C)) and sought to avoid having to reimburse the Bureau of Workers’ Compensation or the “statutory subrogee” (as defined by O.R.C. § 4123.93(B)) out of his personal injury settlement. The BWC brought a lawsuit against the claimant more than two years after the action accrued. The claimant raised a statute of limitations defense. The Court reasoned that the Ohio Worker’s Compensation Act creates a separate right of recovery for a statutory subrogee thus that the BWC’s claim was not derivative of the claimant’s claim. As such, O.R.C. § 2305.07 which allows a six-year statute of limitations for an action on a “liability created by statute” applied.
While it is still true that the early bird gets the worm and I wouldn’t recommend waiting until the statute is about to run on any claim to take action, it is reassuring for statutory subrogee’s to know that they won’t be barred after two years. The six-year limitation applies whether the statutory subrogee is the BWC or a self-insured entity for the purposes of workers’ compensation.
BY:
TED TRAUT, ESQ.