Workers' Compensation Subrogation In All 50 States - 4th Edition

Price: $225.00 1428 pages. 1 Hardcover Volume. Table of Authorities. Table of Cases. Table of Statutes. Published May 2009.
ISBN-13: 978-1-57823-257-4

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Table of Contents

This book is a primer on multi-state workers’ compensation subrogation. While it is useful as a reference tool for any claims handler responsible for subrogation activity, it is intended primarily for those attorneys, claims handlers and claim supervisors who have responsibilities for subrogating in multiple states. Chapters 1 through 8 serve as an introduction to workers’ compensation subrogation and help explain many of the concepts and issues which need to be addressed in subrogating workers’ compensation claims in all 50 states. The author has chosen the laws of Texas, and a few other states, to exemplify the many issues and practical applications involving workers’ compensation subrogation. This is primarily because Texas workers’ compensation subrogation law is fairly well developed in almost every area addressed in this book, and contains provisions fairly typical of those found in the statutes of many states.

Chapter 11, entitled Summary of Worker’s Compensation Subrogation Laws in All 50 States, is a compendium of the relevant workers’ compensation subrogation law from every state. Within each state, workers’ compensation subrogation is broken down into the following categories:

(1)    Statutory Subrogation Rights;
(2)    Third Parties;
(3)    Allocation of Third Party Recovery;
(4)    Attorneys’ Fees and Costs;
(5)    Credit/Advance;
(6)    Related Subrogation Issues;
(7)    Statutes of Limitations; and
(8)    Workers’ Compensation Authority Within that State.

In some states, where the law has been advanced enough to discuss the issue of extra-territorial subrogation (subrogating in another state, for an injury which occurred in another state, yet for which benefit payments were made under the workers’ compensation laws of the home state), this issue is discussed within that state’s summary. However, Chapter 8, entitled Extra-Territorial Subrogation, devotes itself to the issue of extra-territorial subrogation across state lines.
Within each state’s summary, the aforementioned subcategories themselves contain the following issues and topics:

Statutory Subrogation Rights

■    Identifies the statutory authority for workers’ compensation subrogation in that state.
■    Discusses the purpose/legislative intent of the statute.
■    Is an election necessary by the worker?
■    Who can bring a third party action (plaintiff, carrier, employer, or all of the above)?
■    When and must a third party action be brought?
■    What are the rights of a carrier to intervene in an existing third party action filed by a worker?
■    Will a workers’ compensation carrier’s subrogation interest be barred if not brought timely?

Third Parties

■    Who can be sued as third parties in a third party action?
■    Can a co-employee be sued and under what circumstances?
■    Can an uninsured/underinsured carrier be a “third party” under the laws of that state?
■    Is there a dual capacity or borrowed servant doctrine which somehow affects the ability of a workers’ compensation carrier to effectively subrogate?
■    What is the state’s workers’ compensation bar?
■    Are there any specific restrictions regarding subrogation against a subcontractor or an employee of a subcontractor in a construction situation?
■    Under what circumstances can the employer be sued?
■    Can a carrier subrogate to the benefits of a recovery in a legal or medical malpractice action?

Allocation of Third Party Recovery

■    How and when does the carrier recover its subrogated interest?
■    Does the carrier recover past benefits only or also the present value of future benefits which it owes under the Workers’ Compensation Act of that state?
■    Is there a formula used to determine how a third party recovery is allocated?
■    What happens to the total recovery and how is it applied?
■    Can a carrier recover benefits paid by a third party or recovered in a third party action which relate to loss of consortium, or non-economic damages such as pain and suffering, mental anguish, or punitive damages?
■    Does the employer’s negligence reduce the recovery by the worker or carrier?
Attorneys’ Fees and Costs
■    Can the plaintiffs’ attorney recover attorneys’ fees and/or costs out of the carrier’s subrogated recovery and under what circumstances?
■    How are attorneys’ fees and costs handled when the carrier is represented by subrogation counsel, intervenes into the third party action and actively represents its interest?
■    What if the carrier isn’t represented?
■    Can the plaintiffs’ attorney recover attorneys’ fees based on the value of past benefits only or will he be able to recover attorneys’ fees based on the future benefits/credit recovered by the carrier?
■    Must the carrier bar its proportionate share of expenses as many states require, and what does that really mean?

Credit/Advance

■    Can a carrier take a vacation from paying workers’ compen­sation benefits once a worker makes a third party recovery?
■    How is the credit calculated under state law?
■    Does the carrier have to do anything special to obtain the credit, such as filing with the Workers’ Compensation Commission?
■    Does the carrier receive a credit toward future compensation benefits it owes or does it actually get to collect the present value of the future benefits it owes and still be obligated to pay the scheduled benefits in the future?

Related Subrogation Issues

■    Are there any other issues or statutes which affect the workers’ compensation carrier’s right of subrogation, such as the made whole doctrine, common fund doctrine, or anti-subrogation statutes?
■    Are there any lien reduction statutes which affect the workers’ compensation carrier’s right of recovery?
■    Does the state have any no-fault laws which complicate workers’ compensation subrogation involving an automobile accident, such as in Michigan and Colorado?
■    What are the carrier’s options if the worker and his attorney simply refuse to repay the workers’ compensation carrier’s lien after settling a third party action?
■    If the worker fails to repay the carrier, is there a cause of action for conversion of a carrier’s subrogation interest or may the carrier still proceed against the third party tortfeasor to recover its subrogation interest?
Statutes of Limitations
■    Provides the applicable statute of limitations for personal injury, property damage and product liability within the particular state.
■    Some states have a separate statute of repose for product liability as well as one for injuries resulting from improvements to real estate. Where applicable, these Statutes of Limitations are provided.

Workers’ Compensation Authority within That State

■    A short reference to workers’ compensation generally within the subject state.
■    The name, address and telephone number of the authoritative body governing workers’ compensation in that state.

All of the above-referenced subrogation issues may not be addressed by the laws in each state. Therefore, some states have a great deal of case law interpreting the subrogation rights of a carrier on a particular issue, and no case law interpreting a carrier’s right on another issue. We attempt to point out in this book when an area of law has not been well developed within a particular state, and make suggestions with regard to whether a particular area is ripe for development in that state.

“This book fills a long-standing need for a complete treatise covering this confusing subject
across the country. Gary Wickert is clearly the country’s leading authority on nationwide
workers’ compensation subrogation.”
- Loren Smith, Kelly & Smith, P.C., Houston, Texas

“Regardless of which state you handle claims in, if you have workers’ compensation
subrogation responsibilities - you need this book!”
- Jennifer Williams, Claims Service Consultant, The Hartford, Orlando, Florida.

“The book is the bible on workers’ compensation subrogation - regardless of which state the
claim is in.”
- Paul Webb, Claims Specialist, Latitude Claims Services, Inc., Bloomfield Hills, Michigan.

“When our own state’s workers’ compensation statute came under attack, Gary Wickert was
the first person we turned to for information and experience as to how other state’s statutes
handled the same issues. This book in invaluable for subrogation lawyers and insurance
subrogation professionals.”
- Dave Matejczyk, Vozar, Roberts & Matejczyk Co., L.P.A., Subrogation Lawyer and former
Board Member of the National Association of Subrogation Professionals, Cleveland, Ohio.

“Workers' Compensation Subrogation In All 50 States provides an invaluable tool for the
subrogation professional in one handy source. The compilation of this material was a Herculean
effort on Attorney Gary Wickert's part, and the insurance industry is indebted to him for leading
the charge in protecting and enforcing carrier's rights in this one time underutilized area of
claims handling. I highly recommend Attorney Gary Wickert's book and counsel to all workers'
compensation adjusters and claims managers interested in maximizing subrogation recoveries
in each state they write business."
- Bill Gray, GUARD Insurance Group, Home Office Claims Analyst/Specialist, Wilkes-Barre, Pennsylvania

 

About the Author:
Gary Wickert is an insurance trial lawyer and is regarded as one of the world’s leading experts on insurance subrogation. He is the author of several subrogation books and legal treatises and is a national and international speaker and lecturer on subrogation and motivational topics. Mr. Wickert is also a politician in Wisconsin, serving his fourth term as Town Supervisor in the Township of Cedarburg. After 15 years as the youngest managing partner in the history of the 30-lawyer Houston law firm of Hughes, Watters & Askanase, L.L.P., he returned to his native Wisconsin in 1998 and co-founded the firm of Matthiesen, Wickert & Lehrer, S.C. He oversees a National Recovery Program which includes a network of nearly 300 contracted subrogation law firms in all 50 states, Mexico, Canada and the United Kingdom and boasts recoveries of more than $500 million in recoveries and credits for more than 250 insurance companies. Gary Wickert is also a commercial fiction author and his latest political thriller, Dark Redemption (Tudor Publishers), is available on Amazon.com.

Licensed in both Texas and Wisconsin, Mr. Wickert is double board-certified in both personal injury law and civil trial law by the Texas Board of Legal Specialization. He is also nationally certified as a Civil Trial Advocate by the National Board of Trial Advocacy (NBTA), for whom he has both written and graded the product liability questions contained on the NBTA national certification exam taken by trial lawyers around the country. For nearly twenty-five years, he has also served as an expert witness on subrogation and insurance related issues and has been consulted by insurance carriers, lawyers, and legislative bodies from several states. He is a licensed arbitrator and has attended more than 750 mediations in more than 30 different states. He is one of only a few lawyers to have ever represented a client before the United States Supreme Court on a subrogation issue, and was named one of Law & Politics and Milwaukee Super Lawyers magazine’s Super Lawyers for 2005, 2006, and 2008. For a complete resume on Gary L. Wickert, see Appendix A-13 of this book.

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Table of Contents