Workers' Compensation Subrogation in all 50 States - Sixth Edition
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Workers' Compensation Subrogation is the most complete and thorough treatise covering workers' compensation subrogation ever published. There are very few areas in which the laws of each state vary more and are applied as differently, then in the area of workers' compensation subrogation. This book introduces the workers' compensation and subrogation attorney, claims handler, in-house counsel, and subrogation professionals to some of the more esoteric and complex subrogation issues encountered in today's workers' compensation insurance subrogation marketplace. It covers the following issues in all 50 states:
• Allocating Third Party Recoveries
• Attorney's Fees
• Borrowed Servant Doctrine
• Conversion of Workers' Compensation Liens
• Costs and Expenses
• Dual Capacity Doctrine
• Equitable Subrogation/Contribution
• Exclusivity Rule Barring Action Against Employer
• How To Calculate Your Credit/Advance and How It Is Applied In Each State
• Intentional Acts
• Joint Ventures
• Made Whole Doctrine As Applied To Workers' Compensation Subrogation
• Necessity of Intervention
• Lien Reduction Statutes
• Staff Leasing Services and Temporary Employment Agencies
• Statutory Subrogation Rights
• Subrogating Against UM/UIM Benefits
• Subrogating In Medical Malpractice Cases
• Subrogating In Legal Malpractice Cases
• Waivers of Subrogation
• Who Qualifies As A Third Party
• Other Workers' Compensation Subrogation-Related Issues
The Sixth Edition features new case law, statutory amendments, and regulations affecting subrogation rights in most of the individual states’ chapters. In addition, significant new material was added on particular areas of interest, including:
• Longshore and Harbor Workers’ Compensation chapter edited to reflect information on the Special Fund and its rights of reimbursement, including additional case law
• A completely new section on the Jones Act and the LHWCA
• A detailed treatment of the War Hazards compensation Act and Defense Base Act
• New sections on anti-indemnity statues
• New state-by-state law and regulations regarding whether workers’ compensation carriers can recover case management costs, medical bill audit fees, rehabilitation benefits, nurse case worker fees, etc.
• Each state chapter updated with information on OCIP’s
In addition to being an excellent primer on workers' compensation subrogation, suitable for both the new subrogation professional and the seasoned veteran, the book also contains a detailed synopsis of the workers' compensation subrogation laws in each of the 50 states. It is a must for anyone with multi-state subrogation responsibilities. Complete with diagrams, references and thousands of footnotes, this is the most ambitious workers' compensation subrogation project ever undertaken.
The following issues and topics are covered in detail for each of the 50 states:
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 worker's compensation carrier's subrogation interest be barred if not brought timely?
• 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 worker's 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?
• Can the plaintiff's 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 if the carrier is also represented by subrogation counsel, intervenes into the third party action and actively represents its interest?
• What if the carrier isn't represented?
• Can a plaintiff's 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 a carrier bear its proportionate share of expenses as many states require, and what does that really mean?
• 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 get 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?
Statutes of Limitation
• What are the applicable statutes of limitation or statutes of repose that may be applicable to third party subrogation actions?
Related Subrogation Issues
• Are there any other issues or statutes which affect a worker's 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, such as those existing in Indiana, which affect a worker's 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 exist in Michigan and Colorado?
• What are the carrier's options if the worker and his attorney simply refuse to repay a worker's 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?
Gary L. 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.
"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