N.J.S.A. 34:15-40 (“Section 40”) governs the credit due a respondent for any third-party recovery by the petitioner and provides in part:
. . . out of that part of any amount about to be paid in release or in judgment by such third person or his insurance carrier on account of his or its liability to the injured employee or his dependents, the employer or his insurance carrier shall be entitled to receive from such third person or his insurance carrier so much thereof as may be due the employer or insurance carrier pursuant to subparagraph (b) or (c) of this section. Such sum shall be deducted by such third person or his insurance carrier from the sum to be paid in release or in judgment to the injured employee or his dependents and shall be paid by such third person or his insurance carrier to the employer or his insurance carrier. Service of notice, hereinbefore required to be made by the employer or his insurance carrier upon such third person or his insurance carrier, shall be by registered mail, return receipt and in cases other than an individual shall be mailed to the registered office of such other third person or his insurance carrier.
The Appellate Division has recently held that where an individual settles an intentional tort suit against an employer, the workers’ compensation carrier is entitled to assert its N.J.S.A. 34:15-40 lien with respect to the settlement amount. Specifically, the court found that the tort litigation is equivalent to a third party action and that without the lien the petitioner might receive a double recovery for the injuries.
How to assert a workers’ compensation lien under N.J.S.A. 34:15-40.
Serve notice upon the liable third person or that person’s insurance carrier that compensation has been applied for by the injured employee (or his dependents). As a practical matter, it is a good idea to serve a notice letter upon the plaintiff/worker, as well as the plaintiff’s attorney, usually the same attorney representing the worker in the compensation matter. Continue reading Reimbursement from Third-Party Recoveries in New Jersey
The Workers’ Compensation “Bar” on Civil Exposure.
In New York, an employer’s liability for a work-related injury is generally limited to payment of wage loss (indemnity) and medical benefits under the Workers’ Compensation Law (WCL). The WCL prevents an injured worker from suing his employer for his work-related injury, except in cases where the worker sustained a grave injury. It would seem to make sense that a worker who sustained a grave injury would be able to recover more than just Workers’ Compensation benefits given the seriousness of his injury. However, in order for this to happen, there must be a third-party action, wherein a third-party tortfeasor is being sued, and this third-party tortfeasor seeks contribution or indemnification from the employer. Otherwise, if there is no third-party action, the worker cannot directly sue his employer, even if he sustained grave injuries. Continue reading Grave Injuries: When A New York Employee Can Recover From His Employer Outside of Workers’ Compensation
Those familiar with subrogation, liens on third-party lawsuits, and Section 29 of the New York Workers’ Compensation Law may be able to recite the holdings of Matter of Kelly v. State Ins. Fund. and Burns v. Varriale by heart. For a quick review, the Kelly case dealt with a widow whose husband had passed away in the course of employment. The Court of Appeals held that an insurance carrier’s equitable share of the litigation costs and disbursements incurred by a claimant must be apportioned based on the total benefit received. Inclusive in this total benefit is the relief obtained by the Workers’ Compensation carrier of its obligation to make future benefit payments to the claimant. However, and most importantly, the Court of Appeals noted that when the carrier’s future benefit is “speculative,” it would be inappropriate to apportion attorney’s fees based on such benefit.
The Burns case highlighted a situation where the future benefit is speculative. Unlike the situation in Kelly, when the death of the employee can result in a fixed rate payable to the dependent spouse, the Burns employee was awarded a reduced earnings weekly benefit, based on having sustained a permanent partial disability. Because the reduced earnings could fluctuate based on future wages earned by the employee, the Court of Appeals ruled that the Workers’ Compensation insurance carrier’s future benefit was indeed speculative. Therefore, the carrier was entitled to a reimbursement of its Section 29 lien, after deducting its pro-rated share of the employee’s third-party litigation costs and expenses. Continue reading New York Subrogation Case Law Upheld by Third Department
In a previous post, we discussed the process of Loss Transfer and specifically why it matters to Workers’ Compensation carriers. In connection with the Workers’ Compensation aspect, a workers’ compensation carrier can recover up to $50,000.00 by way of arbitration in a Loss Transfer claim through the Arbitration Forums. However, this does not mean that you can simply assert a right to $50,000.00 against another insurance company and think this is enough. Indeed, when arbitrated, liability still has to be proven as well as damages. Continue reading Limits to Recovery in a New York Loss Transfer Claim.
Here is the post-webinar video from our most recent presentation, “Reimbursement and Subrogation in New Jersey.” Three New Jersey attorneys explore reimbursement under N.J.S.A. 34:15-40 and the nuts and bolts of subrogation.
Join us for our monthly webinars on New York and New Jersey workers’ compensation law. Click here to register. The complete archive of prior presentations is here.
Subject(s): Section liens, Reimbursement, Subrogation, New Jersey
Date Presented: December 28, 2015
Presenter(s): Joe Jones, Esq., Marc Pakrul, Esq., and Greg Lois, Esq.
Run time: 25:47
Join us for our monthly webinars on New York and New Jersey workers’ compensation law. Click here to register. Here is the post-webinar video from our most recent presentation, “Reimbursement and Subrogation in New York.” The complete archive of prior presentations is here.
Subject: New York, Workers’ Compensation Law, Section 29, Liens, Reimbursement, Subrogation
Date Presented: December 21, 2015
Presenter(s): Steven Bedoya, Esq., Marc Pakrul, Esq., and Greg Lois, Esq.
Run time: 29:22