MAXIMIZING RECOVERY ON THIRD PARTY CLAIMS:WORKERS’ COMPENSATION LIENS

Presented by:Melissa R. ClearyKevin L. Connors

Matthew W. Skidmore

November 16, 2011

ENFORCING A LIEN: A NC CASE STUDY

• Plaintiff injured her left ankle in the course and scope of her part-time employment . The case was accepted as compensable and benefits were started.

• Plaintiff received periodic care for her work-related injury from a podiatrist who was chosen by the third party administrator. Plaintiff may have complained about the referral and requested to see an orthopedist.

• The podiatrist treated plaintiff and performed a left subtalar arthrodesis.

ENFORCING A LIEN: A NC CASE STUDY

• The podiatrist performed debridement of necrotic tissue for the plantar aspect of Plaintiff’s left foot on June 9, 2006.

• When her ankle failed to heal, Plaintiff was referred to an orthopedist. She had to undergo extensive surgery because a non-union of her subtalar arthrodesis was confirmed. Plaintiff underwent a re-fusion of the left subtalar joint; application of a multi-planar external fixator, removal of hardware, and a separate incision with open lengthening of the flexor tendons to the second, third, fourth and fifth toes.

ENFORCING A LIEN: A NC CASE STUDY

• Plaintiff sued podiatrist for medical malpractice while her comp claim was still open.

• Plaintiff settled her claim for $450,000. The podiatrist had an insurance policy with a limit of $1 million.

• At the time of the settlement, the workers’ compensation lien was in excess of $262,000 and benefits were continuing.

• Pursuant to statute, plaintiff filed a Motion with the Superior Court requesting that the lien be eliminated completely.

ENFORCING A LIEN: A NC CASE STUDY• Plaintiff argued that defendants chose the

provider so it was, in essence, their fault that the malpractice occurred.

• Defendants argued that since Plaintiff’s settlement did not exhaust the podiatrist’s limits, she must have recovered everything that she was entitled to receive. NC clearly prevents a double recovery.

• What was the ruling?

OPTIONS FOR ENFORCING A LIEN

• If the comp case is in the processing of settling, the lien can be negotiated as part of the settlement. Most states do not allow claimant ‘s counsel to disburse the third party proceeds until the lien is addressed.

• Another option is to assist claimant’s counsel in pursuing the third party case in exchange for a deal on the lien.• Graduated scale• Information in the comp file can help them.• Ready made conservative experts• Serving two masters

OPTIONS FOR ENFORCING A LIEN

• Proceeding on your own• Working directly with a pro se claimant •Representation

QUESTIONS?