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John Bair
John Bair
Contributor • (716) 883-1833

Negotiating the Resolution of a 3rd Party Liability Case Involving a Work Injury

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Many catastrophic work injuries occur every year, affecting men and women in professions ranging from construction to scaffold, roadside, shipyard, rail and more. With these hazards in mind, it’s only through diligence in safety, training and care that keeps employees from harm. Trial lawyers know firsthand that most if not all worksite injuries are avoidable.

work injury liabilityMost lawsuits involving a catastrophic injury, one that disables an individual from his or her particular profession, will have significant value in the future for lost wages and cost of care.

However, one tough task at the end of long litigation journey will be to resolve the existing workers’ compensation lien or subrogation interest. State law provides workers with compensation benefits, paltry for most, and these benefits typically have to be paid back if a 3rd party is held responsible. In states where it is legal, most comp carriers or state labor boards will want to close out the future medical in connection with the resolution of a lien.

In this type of situation, there are three important practice points to consider:

  1. The future cost of care should be demanded at retail prices with an appropriate inflation factor.  In many cases, an attorney should be able to negotiate the difference between what the comp carrier has projected, what it wants to be off the hook for, and what it will cost the client out-of-pocket for that same care. This negation can often lead to not only waivers of the past lien, but also the compensation carrier paying money up front to close out their obligation.
  1. For clients receiving Social Security Disability Income, which is treasury based social security prior to age 65 due to a disability, Medicare will be a reasonable payer for future injury-related medical costs. Medicare Secondary Payer (MSP) states that Medicare will be a payer of last resort. Regardless of a lawyer’s practice technique regarding Medicare and Medicare set-asides in 3rd party cases, the difference between what comp will pay and the 80/20 coverage afforded under Medicare can be a useful future damages tool to negotiate more money in settlement for the injured worker.
  1. In the event a trial lawyer has invested in the development of a Life Care plan, Our Life Care Plan Analysis is very compelling product for negotiation and assisting the client in understanding his or her financial future after settlement. This analysis provides lifetime costs for out-of-pocket as well as coverage by the applicable categories of insurance – Medicare, Medicaid and private.

The added challenges in some cases involving catastrophic work injuries can be easily addressed with the right tools at hand. Speak with an expert today to learn about the options.