Machine defects and subrogation

"Skedsvold & White
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In the last post we were investigating a hand injury from entrapment on a conveyor belt. One of the possibilities discussed was a machine malfunction or defect. First things first, this is not the fault of the employee so your initial impulse to provide medical treatment without regard to liability has been vindicated and your employee has not been left to his own devices or to the tender mercies of his TV attorney. Your quick work on investigation has also preserved the evidence that you will need for your Subrogation claim. State laws will vary on how you can protect your Subrogation interests but one thing is certain, you have to protect your own interests. Expecting the injured worker's attorney to remember all of your cooperation and assistance when it comes time to pay your Subrogation lien is about as wise and reliable as the promises of a Fraternity Boy on a Friday night. Prepare your file, protect your own interests. Besides, if a machine malfunction has injured on of your workers, that machine malfunction has cost you money. Under many state statutory schemes your Subrogation interest can only be recovered AFTER the injured worker has been made whole. The question of when an injured worker is "made whole", is a subjective concept that can be easily defeated if you have not acted quickly to assert then protect your own interests. The questions that will need to be asked: 1)what is the defect or the problem? Is it a design defect that allowed the injury to happen, a safety defect that did not act to stop the machine from moving when a certain action was taken (for example the pinch point was behind machine guards which, when opened should have automatically stopped the machine) 2) how old is the machine - if the machine is too old any action to recover could be barred by a statute of repose. 3) was there some act or practice by your employees that circumvented the safety devices that led to the injury. If this is the case, the fault , and therefore the expense of the claim, are likely yours alone. In such a case, your investigation should have revealed when this circumvention occurred, by whose hand and whether there was any actual or tacit permission for it to have occurred. If your supervisory staff knew or should have known that safety devices were being deliberately circumvented, your problem is not with the injured worker but with your supervisory staff. A timely termination here of the responsible supervisor would not only be good policy but might help convince the injured worker and his co-employees that the injury is not okay with you and that you intend, going forward to properly protect your employees.