Monday, November 19, 2012

Workers Compensation Liens: The Client's Duty to Repay and the Employer's Future Credit

   When a person suffers a work injury, he receives workers' compensation benefits.  These include both payment of medical benefits as well as payments of Disability Benefits.  Over time, there may be other benefits such as partial impairment benefits and vocational retraining benefits.

    When the work injury is caused by someone other than the employer, the worker has a "third party claim."  
Should the worker be successful in recovering his losses from this party, the worker has 3 duties to his employer and its workers' compensation insurer.

1.  The worker must obtain the employer's consent to settlement.  If  the worker fails to do this, the employer  is no longer responsible for paying workers' compensation benefits.   This is true even if the "settlement"  means the worker is giving up on his case.

2.  The worker must pay back any worker's compensation benefits.

3.   If the worker is able to recover more than he has received in workers's compensation benefits, the remaining amounts serve as a credit against future workers' compensation benefits.

While actual results depend on the facts of the specific case, a lawyer can negotiate a reduction of the worker's compensation "pay back."  At a minimum, the workers' compensation insurer must pay the pro rata share of any legal fees incurred to recover the pay back amounts.  Beyond this, a workers' compensation insurer may be willing to further reduce the pay back if the injured worker is willing to agree not to receive further workers' compensation benefits.

While one cannot predict the result in all cases, you have to play your hand smartly.  See

Tuesday, November 6, 2012

Motorcycle Fatality Due to Improper Conduct by State of Alaska DOT

     Last week, I was able to successfully negotiate the settlement of a motorcycle fatality case against the State of Alaska, Department of Transportation ("DOT").  The basis of DOT responsibility was DOT workers' failure to clean up after asphalt repair with the result being that the motorcyclist lost control of his bike on small pieces of gravel entering a sharp curve.

     Clients often ask about what makes a case strong and what makes a case weak.  Here are  what I considered to be some of the keys to success in this case.

1.   Photographic confirmation of asphalt repair work (DOT workers could not remember what work they did except in the most general terms)

2.   Neutral witness confirmation of hazardous road conditions specifically on the day and time of the accident.(DOT workers simply denied they would ever do shoddy work)

3.    Photographic and record corroboration of neutral witness testimony. (In this case, one witness actually called DOT to complain and there was a record confirming the phone call).

4.    The deceased having a clean traffic citation history so as to rebut accusations of reckless driving. (Rightly or wrongly, there is a stereotype of motorcylists).

5.    The deceased driving a touring motorcycle while wearing helmet and leathers.

6.    Advising the clients how the case could be lost despite strong facts.   One consideration in this case is that a jury deciding a claim against a government entity appreciates that the verdict will be paid from tax dollars.  Just as a popular television commercial says "Its our Oil!" the jury will be saying "Its our Money."

The motorcyclists family were deserving clients and I was happy that I could help them.  In my opinion, they played their hand smartly.