You were hurt on the job. You received workers’ compensation benefits. But, a third-party (someone outside your work) caused the accident. You want to pursue a personal injury claim against that third-party. Can you file a workers’ compensation claim AND a personal injury claim? Yes, you can. But, you need an attorney who understands how these two claims work together. You also need to understand the workers’ compensation insurance company has certain rights (a lien) to be repaid from your settlement. A good attorney can help maximize your settlement recovery from these two claims.
The workers’ compensation carrier has a lien against your personal injury case. Under Alabama law, your employer (and its insurance carrier) have certain rights to get their money back if you win your personal injury case. At our firm, we routinely represent clients in both workers’ compensation and other personal injury cases. We understand how these areas of the law interact.
What happens when your employer or its insurance carrier file a lien against the third-party negligence case? The issues can be complicated. How you (or your lawyer) handle these issues can tremendously impact your bottom line. I could discuss these issues in significant detail. But, here are four quick tips to consider when handling this type of case:
- Verify The Claimed Lien. In every case, I make the employer’s insurance carrier produce a detailed print-out of all payments. I do not simply accept the total amount claimed by the employer or insurance carrier as its lien. When I review these print-outs, I often find administrative or investigative expenses included in the total. The claimed lien total should only include actual payments for your medical care or your disability benefits. It should not include extra payments for administrative, investigative, legal, case management or other matters. Many attorneys simply accept the total provided by the insurance carrier. I do not. And, we are often able to save significant money for our clients by reducing the lien amount you owe.
- Bring The Workers’ Compensation Insurance Adjuster To Trial. Your employer and its insurance carrier have a lien for the medical expenses and disability payments related to your injury. The lien amount can be significant. If you ultimately go to trial in your personal injury case, the damages you seek will include your medical expenses and wage losses. That is, you will probably discuss these numbers at the personal injury trial. Who is in the best position to be a credible witness as to these amounts? The adjuster who made the decision to pay the amounts can make an excellent witness. We all know the workers’ compensation adjuster only paid medical costs or disability payments when absolutely necessary. If you have fought for workers’ compensation benefits like I have, you will understand. We all know the adjuster did not pay anything extra and reviewed every charge. So, that adjuster makes a credible witness to numbers that are real, necessary and conservative. I have used these adjusters as witnesses in several personal injury jury trials. Their testimony has made a significant and positive difference in these cases. I have interviewed jurors after several trials and the feedback is very positive.
- Keep The Workers’ Compensation Insurance Adjuster Updated. Many personal injury attorneys ignore the workers’ compensation issues and adjuster. Their clients often suffer as a result. These attorneys will call the workers’ compensation adjuster only when the third-party case is about to settle. That can be a mistake. In our third-party cases, we periodically call the adjuster. If you have a difficult third-party case and a full recovery is doubtful, the workers’ compensation adjuster needs to understand the problems. Why? Because you might need to accept less to settle a doubtful third-party claim and you will want the workers’ compensation adjuster to reduce its lien. If you are going to ask that adjuster to take less, you need to let them know the difficulties ahead of time. This effort can greatly benefit your injured client.
- Get Any Contracts Between Your Employer And The Negligent Third-Party. In some third-party cases, this is not an issue. For example, you are a delivery driver. You were hurt on the job by another driver in a car accident. You have a workers’ compensation claim. You also have a third-party negligence case against the other driver who caused the car accident. I’m not talking about that type of case. I’m talking about cases on construction or industrial sites where your employer has some contractual relationship with the property owner, manager, or another contractor. In those cases, I have occasionally found contracts where one party agrees to waive any claims. Sometimes, these contracts specifically waive any liens. I have successfully argued that liens were waived on prior occasions before a trial court in Alabama. One word of warning – the Alabama Supreme Court has not fully addressed this issue on appeal.
Liens can create complicated issues. Too many attorneys either don’t understand the issues or won’t take the time to handle them. A skilled attorney who specializes in personal injury and workers’ compensation cases can greatly benefit your ultimate recovery. If you have additional questions, the attorneys at the Blackwell Law Firm are happy to provide answers.