§10.14 Generally: Section 287.150, Rsmo

• Library: Workers' Compensation Law Deskbook Vol. 2 (2020 Ed.)

A. (§10.14) Generally: Section 287.150, RSMo

The resolution of a third-party claim is often highly dependent on the subrogation rights of the employer to recover from the third party some or all of the workers’ compensation benefits paid out to the employee by the employer. The statute calculates the amount of recovery that may be made by the employer by taking into account both the litigation costs incurred in obtaining the third-party recovery and any comparative fault assessed to the employee by the trier of fact. The subrogation rights of an employer against a third party are established and determined by § 287.150, RSMo 2016:

1. Where a third person is liable to the employee or to the dependents, for the injury or death, the employer shall be subrogated to the right of the employee or to the dependents against such third person, and the recovery by such employer shall not be limited to the amount payable as compensation to such employee or dependents, but such employer may recover any amount which such employee or his dependents would have been entitled to recover. Any recovery by the employer against such third person shall be apportioned between the employer and employee or his dependents using the provisions of subsections 2 and 3 of this section.

2. When a third person is liable for the death of an employee and compensation is paid or payable under this chapter, and recovery is had by a dependent under this chapter either by judgment or settlement for the wrongful death of the employee, the employer shall have a subrogation lien on any recovery and shall receive or have credit for sums paid or payable under this chapter to any of the dependents of the deceased employee to the extent of the settlement or recovery by such dependents for the wrongful death. Recovery by the employer and credit for future installments shall be computed using the provisions of subsection 3 of this section relating to comparative fault of the employee.

3. Whenever recovery against the third person is effected by the employee or his dependents, the employer shall pay from his share of the recovery a proportionate share of the expenses of the recovery, including a reasonable attorney fee. After the expenses and attorney fee have been paid, the balance of the recovery shall be apportioned between the employer and the employee or his dependents in the same ratio that the amount due the employer bears to the total amount recovered if there is no finding of comparative

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