WORKER’S
COMPENSATION AND RELATED LAWS -- INDUSTRIAL COMMISSION
CHAPTER 2
SCOPE -- COVERAGE -- LIABILITY
72-223.Third party liability. (1) The right to compensation under this
law shall not be affected by the fact that the injury, occupational
disease or death is caused under circumstances creating in some person
other than the employer a legal liability to pay damages therefor,
such person so liable being referred to as the third party. Such third
party shall not include those employers described in section 72-216, Idaho Code,
having under them contractors or subcontractors who have in fact complied
with the provisions of section 72-301, Idaho Code;
nor include the owner or lessee of premises, or other person who is
virtually the proprietor or operator of the business there carried
on, but who, by reason of there being an independent contractor or
for any other reason, is not the direct employer of the workmen there
employed. (2) Action
may be instituted against such third party by the employee, or in
event compensation has been claimed and awarded, by the employee and
employer jointly, in the employee’s name, or, if the employee
refuses to participate in such action, by the employer in the employee’s
name.
(3) If compensation
has been claimed and awarded, the employer having paid such compensation
or having become liable therefor, shall be subrogated to the rights
of the employee, to recover against such third party to the extent
of the employer’s compensation liability.
(4) Unless
otherwise agreed, upon any recovery by the employee against the third
party, the employer shall pay or have deducted from its subrogated
portion thereof, a proportionate share of the costs and attorney’s
fees incurred by the employee in obtaining such recovery unless one
(1) or more of the following circumstances exist:
(a) If prior
to the date of a written retention agreement between the employee
and an attorney, the employer has reached an agreement with the third
party, in writing, agreeing to pay in full the employer’s subrogated
interest;
(b) If the
employee alleges or asserts a position in the third party claim adverse
to the employer, then the commission shall have jurisdiction to determine
a reasonable fee, if any, for services rendered to the employer;
(c) If there
is a joint effort between the employee and employer to pursue a recovery
from the third party, then the commission shall have jurisdiction
to determine a reasonable fee, if any, and apportion the costs and
attorney’s fees between the employee and employer.
(5) If the
amount recovered from the third party exceeds the amount of the subrogated
portion payable to the employer for past compensation benefits paid,
then to the extent the employer has a future subrogated interest in
that portion of the third party recovery paid to the employee, the
employer shall receive a credit against its future liability for compensation
benefits. Such credit shall apply as future compensation benefits
become payable, and the employer shall reimburse the employee for
the proportionate share of attorney’s fees and costs paid by
the employee in obtaining that portion of the third party recovery
corresponding to the credit claimed. The employer shall not be required
to pay such attorney’s fees and costs related to the future
credit prior to the time the credit is claimed. However, the employer
and employee may agree to different terms if approved by the industrial
commission.
(6) If death
results from the injury or occupational disease and if the employee
leaves no dependents entitled to benefits under this law, the surety
shall have a right of action against the third party for recovery
of income benefits, reasonable expenses of medical and related services
and burial expense actually paid by the surety and for recovery of
amounts paid into the industrial special indemnity account pursuant
to section 72-420, Idaho Code,
and such right of action shall be in addition to any cause of action
of the heirs or personal representatives of the deceased. (7) All
rights and restrictions herein granted to the employer have previously
been intended to be, and are hereby expressly granted to the industrial
special indemnity account.
Idaho Statutes