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  1. #1
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    Default Personal Injury Settlement and Workers Comp

    If the WC claim has been denied and Plaintiff paid for all of their own medical expense, does WC have a right to put a lien on PI settlement? The PI will be settled before any mediation of action with WC. Logic would think that since WC denied claim, the technically they are not accepting liability, therefore they have no right to PI claim. Someone please explain.

    Thanks

    this is in North Carolina

  2. #2
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    Default Re: Personal Injury Settlement and Workers Comp

    WC has a lien against the PI case if WC has paid anything, even if all they paid was a settlement in a denied case. NCGS 97-10.2
    The North Carolina Court of Appeals has held that "In contested Workers' Compensation cases today, access to competent legal counsel is a virtual necessity." Church v. Baxter Travenol Labs, Inc., and American Motorists Insurance Company, 104 N.C. App. 411, 416 (1991).

    Bob Bollinger, Attorney and Board Certified Specialist in NC Workers' Compensation Law

  3. #3
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    Default Re: Personal Injury Settlement and Workers Comp

    okay help me clarify. WC denied claim. They have not paid a dime for anything. The personal injury will settle before I even go to mediation. Do they still have a right to a lien. Is there a way to structure PI claim so that WC will not any rights. Such xx number of dollars are for pain and suffering, etc. It seems WC can screw you coming and going. I would think since they snooze they lose that right.
    Last edited by SShawk1; 04-05-2017 at 01:46 PM.

  4. #4
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    Default Re: Personal Injury Settlement and Workers Comp

    SShawk1
    Is there a way to structure PI claim so that WC will not any rights.
    Sure, drop the comp case.

    I would think since they snooze they lose that right.
    Not really, this isn't a game.
    The pain and suffering portion of the PI claim would be exempt from the lien.

    I don't get it, what do you want to do - collect twice for the same incident?
    Why wouldn't Comp be entitled to reimbursement if you later won your claim after you collected wage loss and medical from the PI claim?
    You can't collect twice for the same incident - that's called "double dipping"

    Tony
    Moderator Responses are based on my personal bias, experience and research - They do not represent the views of the admin nor may be accepted in the legal community, always consult an attorney.

  5. #5
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    Default Re: Personal Injury Settlement and Workers Comp

    No, you cannot structure it, but NC law allows your lawyer to go to Superior Court and ask the judge to eliminate or reduce the work comp lien. Sometimes the threat of doing that will get the lien reduced voluntarily. The statute is NCGS 97-10.2(j). Superior Court judges are pretty good about reducing those liens.


    It is known as a "j hearing." The pain and suffering portion is exempt from the lien only if you can get the judge to reduce the lien for you. All of the personal injury settlement is subject to the lien otherwise.
    The North Carolina Court of Appeals has held that "In contested Workers' Compensation cases today, access to competent legal counsel is a virtual necessity." Church v. Baxter Travenol Labs, Inc., and American Motorists Insurance Company, 104 N.C. App. 411, 416 (1991).

    Bob Bollinger, Attorney and Board Certified Specialist in NC Workers' Compensation Law

  6. #6
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    Default Re: Personal Injury Settlement and Workers Comp

    Tony,

    It is a matter of collecting for damages done by a 3rd party. The PI portion is limited and will not even come close to compensating for damages. It is limited the insurance coverage of the 3rd party or my uninsured. This is a policy that I paid to protect me and my family. Even with a 100k limit, minus atty fees and a little bit of medical, I would clear 60k or 7 months of income at best. Workmen comp continue to play their game and denies a very clear cut case. So I have lost 6 months of income, Paid 75k in medical, and not able to return to work for at least a year, if ever. I am 56 years old. My family and I used up all of our saving, force to file bankruptcy, having to move into some shit hole house inorder to fight WC. All this because they refuse to do the right thing and pay the max of 944/ wk less than 1/2 of my income. We are further damaged by their actions. So yes, you are GD right I want to be re reimbursed for everything. Not being greedy, but their actions are deplorable. So I do not see how you consider this double dipping.

  7. #7
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    Default Re: Personal Injury Settlement and Workers Comp

    SShawk1
    It is a matter of collecting for damages done by a 3rd party.
    Do these damages include wage loss and medical?
    If so, how do you figure you should collect wages and medical again in a comp case?
    I understand the pain and suffering part - I don't get the collect twice on lost wages and medical.

    The comp carrier can file a lien for the wage loss and medical they've paid or will pay if you win wage loss and medical in the PI claim, they can't collect a dime more.
    In the event you're awarded punitive damages only in the PI claim, the comp carrier won't have standing to file a lien - if they try, it will be denied.
    That's why I said the punitive side of the PI claim is safe from seizure - comp doesn't pay punitive damages and can't be reimbursed for such.

    I want to be re reimbursed for everything. Not being greedy, but their actions are deplorable. So I do not see how you consider this double dipping.
    Being reimbursed for everything is fine - filing a comp claim on top of a PI claim and attempting to deny the carrier the right to a lien is a little overdone ya think?
    Collecting wage loss and medical twice for the same incident is double dipping, how else can you consider it?

    Just because you're pissed and want revenge isn't legal standing to deny the Comp carrier's right to file a lien.
    The advantages of filing a PI claim is to collect for pain and suffering (punitive damages) not allowed in a comp claim.
    It's not to collect twice for lost wages and medical on top of the punitive damage award.
    I can't understand why that's not good enough - why the need to double dip?

    Maybe I'm missing something.

    Tony
    Last edited by tony; 04-06-2017 at 12:41 PM.
    Moderator Responses are based on my personal bias, experience and research - They do not represent the views of the admin nor may be accepted in the legal community, always consult an attorney.

  8. #8
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    Default Re: Personal Injury Settlement and Workers Comp

    At the OP's income level, the indemnity paid by work comp is less than half of his lost wages. Bad conduct by the comp carrier, such as a bogus denial, will factor in to the lien reduction scenario too. Given his facts, I think a Superior Court judge would be very amenable to eliminating or greatly reducing the comp lien. That way, he can be made whole on his lost wages, pain and suffering, and medical expenses. The theory behind the lien is that a person should not get a "double recovery" but in a real world scenario, a true double recovery very rarely presents itself. Getting made whole-- a single full recovery -- usually requires the lien to be reduced or eliminated.
    The North Carolina Court of Appeals has held that "In contested Workers' Compensation cases today, access to competent legal counsel is a virtual necessity." Church v. Baxter Travenol Labs, Inc., and American Motorists Insurance Company, 104 N.C. App. 411, 416 (1991).

    Bob Bollinger, Attorney and Board Certified Specialist in NC Workers' Compensation Law

  9. #9
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    Default Re: Personal Injury Settlement and Workers Comp

    Quote Quoting complwyr View Post
    At the OP's income level, the indemnity paid by work comp is less than half of his lost wages. Bad conduct by the comp carrier, such as a bogus denial, will factor in to the lien reduction scenario too. Given his facts, I think a Superior Court judge would be very amenable to eliminating or greatly reducing the comp lien. That way, he can be made whole on his lost wages, pain and suffering, and medical expenses. The theory behind the lien is that a person should not get a "double recovery" but in a real world scenario, a true double recovery very rarely presents itself. Getting made whole-- a single full recovery -- usually requires the lien to be reduced or eliminated.
    I have no idea of what you mean by being made whole on medical when the PI claim would pay 100% - why then should he receive another 100% from comp to be made whole?
    In the same way, if the PI claim paid 100% of wage loss, why should he now collect another 50% from comp?
    At the very least, relieve the comp carrier from paying wage loss and hold them responsible for any medical not paid from the PI claim - that would be equitable.

    As a rule, the medical side is the most expensive part of a claim, it's worth more than the wage loss side.
    The fact the PI claim pays punitive on top of wage loss would be plenty to make the claimant whole, collecting medical twice as a bonus would be excessive in my book.
    There's no reason for anyone to collect twice for medical expenses, that's just plain fraud in my book.

    This is exactly why insurance premiums are going through the roof - the industry can't afford to pay medical twice for every claim, it'll go broke.
    People complain about carriers being pricks and putting legitimate claims through hell, this is why - the carriers have to recover these losses from someone.
    I've never understood why people bitch about the system being so unfair and corrupt, then file two claims for the same incident and try to collect twice - amazing.

    I can understand filing a comp claim and a third party claim to assure a quicker recovery but to think you can collect from both is ridiculous, you'll have to repay one or the other at the end of the day.
    I think the confusion with these types of threads arise out of the idea the comp carrier is filing a lien and not paying benefits - that's not the case.
    Like the OP said "Logic would think that since WC denied claim, the technically they are not accepting liability, therefore they have no right to PI claim."
    That's true except when they are found liable and pay benefits - you can't collect twice.

    Tony
    Moderator Responses are based on my personal bias, experience and research - They do not represent the views of the admin nor may be accepted in the legal community, always consult an attorney.

  10. #10
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    Default Re: Personal Injury Settlement and Workers Comp

    Punitives are not available in NC negligence actions. The legal standard to obtain punitive damages is extremely high, so high as to be almost unattainable. And punitives are never payable when ordinary negligence is the issue. Punitives require a much higher standard of culpability than ordinary negligence.

    The Superior Court judge can reduce or eliminate the lien in NC. Should he eliminate the lien, you have sort of "collected twice" as Tony defines it. Both insurance companies collected the premiums and agreed to pay the claim, so it is hard to argue that either one of them is being taken advantage of--they are both just doing what they got paid to do.

    The judge can allow the comp carrier to have a dollar for dollar reimbursement on the medicals paid, and eliminate the rest of the lien, if the judge wishes. It is purely discretionary. Workers' comp pays nothing for pain and suffering, or inconvenience, or loss of consortium, and the wage loss payments are only 2/3 of gross pay, so there are plenty of reasons to cut the lien so that the Plaintiff can get a full recovery from the injuries, like he would get in a pure tort setting with a favorable verdict. The insurance companies are making plenty of money, because they are very adept at screwing over most claimants, so don't shed a tear for them. IF they get in trouble they can just limit their CEOs to only a few hundred thousand in compensation for a year or two and recoup their losses.
    The North Carolina Court of Appeals has held that "In contested Workers' Compensation cases today, access to competent legal counsel is a virtual necessity." Church v. Baxter Travenol Labs, Inc., and American Motorists Insurance Company, 104 N.C. App. 411, 416 (1991).

    Bob Bollinger, Attorney and Board Certified Specialist in NC Workers' Compensation Law

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