How Loss of Consortium Can Shield Workers Comp Awards from Subrogation
While laws relating to who and under what conditions people can recover damages from loss of consortium vary by state, loss of consortium is a type of claim that can involve workers compensation.
What is loss of consortium?
“Loss of consortium is a claim made by the spouse of an injured person. In such a claim, the spouse can state a cause of action to compensate the spouse for the loss of love, companionship, comfort, care, assistance, protection, affection, society, moral support as well as the loss of the enjoyment of sexual relations or the ability to have children.” – Richard J. Kern, Retired, Law Offices of PKNW.
Loss of Consortium can be caused by accidents that result in paralysis, such as a spinal or brain injury, impairing one’s ability to work or perform the way they used to. In the case of a brain injury, they may be mentally impaired or not be able to remember things in a normal way. According to the website at Chain, Cohn Clark, attorneys, the injured spouse in a loss of consortium must:
“Prove that [their] marriage was materially affected by the victim’s injuries. Injuries that alter one’s spouse’s mental or physical abilities are eligible for compensation. This can include side effects of medications administered during treatment or recovery.”
How is workers comp subrogation affected by a loss of consortium claim?
As explained by Kern, “Typically, the loss of consortium cause of action is joined in the employee’s lawsuit. However, the damages awarded a spouse for loss of consortium are separate and distinct from the damages awarded the injured person.”
This means that when damages are awarded, the portion that goes to the spouse is not available for subrogation, only the portion allocated to the injured worker can be used to reimburse the insurer or self-insured employer.
According to Saerim Luciano, senior counsel and chair of Pearlman, Brown & Wax, allocating a large portion of the settlement to loss of consortium is a growing trend. “Plaintiffs’ attorneys are solely driving this trend,” according to Luciano, as reported by Steve Hallo, managing editor of Property Casualty 360.
“Typically speaking, we would only see loss of consortium claims with larger injures and larger losses,” she said. Now, we are seeing a loss of consortium claim asserted by the injured worker’s spouse for minor injuries and even incidental car accidents.
“In order for employers to obtain favorable outcomes, they must be prepared to actively intervene and litigate damages. This will put them in the optimal situation of recovering, thus removing the threat of any consortium claim losses,” she concluded.
The courts may not be so easy to persuade, however. In a recent case in Pennsylvania, the state’s supreme court rejected Hartford’s claim that the allocation which awarded the injured employee’s spouse 60% of the total settlement resulted from “an attempt to thwart [the insurer’s] subrogation rights.”
The court concluded that “considering both the lingering psychic harm to Mrs. Gleason and Mr. Gleason’s positive recovery, the evidence amply supports the conclusion that the allocation of 60% of the total settlement to the loss of consortium claim in this third-party action is reasonable.” (John Gleason and Elaine Gleason, H/W V. Alfred I. Dupont Hospital for Children, et. al.)
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