D.C. Workers Compensation Act Amended to Provide for Reversion of Third Party Claims

The District of Columbia Workers Compensation Act provides for an automatic assignment of the right to sue a third party to the employer if the person entitled to compensation does not file suit within six months after being awarded compensation in an order. D.C. Code § 32-1535(b). This provision had been applied to bar a worker from filing a civil action for damages against a third party tortfeasor more than six months after being awarded worker’s compensation benefits in an order, even if it operated to shorten the general three year statute of limitations for the worker to file suit. Cunningham v. George Hyman Constr. Co., 603 A.2d 446, 447 (D.C. 1992).

The District of Columbia Council recently amended the Act to allow for a reversion of the right to sue third party liable for the worker’s injury if the employer does not file suit against the third party within 90 days. D.C. Law 20-159, § 2. (Effective February 26, 2015). This amendment applies to causes of action for negligence for which the three-year statute of limitations [generally applicable to negligence claims] has not yet expired. Id. § 3. 

With this amendment, the Council modified the assignment provision to have the right to file suit against the tortfeasor revert back to the injured worker if his employer does not file suit within 90 days.  This change is akin to the Longhore and Harbor Workers’ Compensation Act 33 U.S.C. § 933(b) (1988), as amended by Pub. L. No. 98-426 § 21(a) (1984) ("If the employer fails to commence an action against such third person within ninety days after the cause of action is assigned under this section, the right to bring such action shall revert to the [employee].") and the Maryland Workers’ Compensation Act, where the worker’s right of action is assigned to the employer when the Commission awards compensation benefits, but it reverts back to the worker if suit is not filed within two months after the award. Md. Code, Labor and Employment § 9-902.