It is not rare for an injured worker to suffer a setback in the recovery process from an industrial injury. A fall, motor vehicle accident or other occurrence can delay, complicate, or re-injure the applicant. The additional cost of dealing with the re-injury can include medical expenses and temporary disability. Typically, such a nonindustrial event can form the basis for apportionment so permanent disability is rarely an issue.

An adjuster’s initial reaction to such a setback may not include consideration of a subrogation action against the party who caused the injured worker’s new or increased symptoms. However, case law holds that even a nonindustrial event can be the basis of a subrogation action where the nonindustrial event re-injures the applicant.

In the case of Abdala v. Aziz, 3 Cal.App.4th 369, the Court was presented with a situation where Fadia Abdala, an employee of Jack in the Box, sustained a back injury in an industrial accident. Aetna Casualty & Surety Company, the workers’ compensation carrier for Jack in the Box, thereafter provided medical and other benefits to her under its workers’ compensation policy. Some 14 weeks later, plaintiff was involved in an automobile collision unrelated to her employment which allegedly aggravated her preexisting injuries. She subsequently brought suit against Fawzia Aziz who was one of the persons purportedly at fault in the collision.

Plaintiff’s counsel wrote a letter to Aetna in which he stated “The industrial accident may not be the exclusive cause of her present back condition and the medical bills which she incurred but as long as it is a proximate and legal cause, the insurance company or employer is responsible for all of the bills.” Aetna thereafter began paying additional benefits for the aggravation of plaintiff’s injuries caused by the collision.

Aetna filed a Complaint in Intervention in Ms. Abdala’s ongoing third party case against the defendant in the automobile collision. The Court ruled:

“Based upon the foregoing, we discern a clear and legislative policy militating in favor of reimbursement whenever possible. The employer who assumes the burden of paying benefits for all damages proximately related to an industrial accident, including those caused by a subsequent third party tortfeasor, surely is entitled to seek reimbursement from the party responsible for the aggravation of the industrial injuries. The employer may, however, recover only to the extent the tort injury exacerbated the employee’s condition, i.e., only to the extent compensation was increased by the tort injury.”

The issue may not necessarily be whether a Complaint in Intervention or Complaint can be filed. Rather, the question is how to calculate the increase in benefits from the former industrial injury as contrasted to the later nonindustrial injury. This is purely a medical question and one in which a doctor would have to comment upon in terms of both the temporary disability and medical expenses incurred.

Do not rule out the possibility that subrogation may be a way of recouping the expense of an applicant’s non industrial aggravation which increases your medical expense and temporary disability from an industrial injury.