Injured Employee’s Recovery Election

Historically, when an employee was injured in the course of his employment, but at the hands of a negligent third party, he was technically able to pursue relief through both the workers’ compensation system and a third-party action. Though not able to receive a double recovery, the employee was technically eligible to recover under either theory. However, strict election rules required that he choose which theory of recovery he would pursue, even if his “choice” ultimately left him with no compensation at all. For example, the injured employee elects to proceed with a third-party action, thereby foregoing workers’ compensation, but ends up losing the third-party action.

Such a harsh result has been tempered over time in most states. Now, employees who elect to pursue a third-party action, but who are less than successful in such enterprise, are not barred from workers’ compensation. Further, even though an employee applies for workers’ compensation benefits, he is not completely prohibited from attempting to gain a recovery from a third party. Of note, Minnesota retains the doctrine of strict election with respect to situations where the employer and the third party are operating in furtherance of a common enterprise or, at the time that the employee was injured, are operating to accomplish the same purpose, or a related purpose, at the location where the employee was injured.