The rising value of workers’ compensation benefits received by injured employees, coupled with the increasing reluctance of civil juries to award significant damages in personal injury actions, has resulted in a growing number of situations in which the injured employee either declines to pursue any third party recovery or is tillable to obtain an attorney to represent him in doing so. In such situations the subrogation attorney can maximize the client's recovery by recovering the injured employee's own damages, by recovering anticipated future workers' compensation expenditures, and by recovering prejudgment interest on the compensation benefits recovered.

This Expert Commentary, authored by Laughlin, Falbo, Levy & Moresi, LLP, one of the largest firms in the country specializing in California Workers' Compensation Defense, discusses California subrogation strategies when the injured worker is not a party to the civil case, including circumstances when the employer prosecutes the civil case alone, recovery of damages owed to the employee, recovery of future workers’ compensation expenditures, and recovery of prejudgment interest.

The Commentary concludes that seeking recovery of the additional elements of damage is beneficial in two ways: it will maximize the employee's recovery should the action proceed to trial; and, it will improve the subrogation attorney's bargaining position in pretrial settlement negotiations.