Category Archives: Subrogation

New Case Decision: New Jersey Workers’ Compensation Carriers Can Subrogate Minor Injuries Even Where Petitioner Could Not

In a decision released December 4, 2018, a New Jersey appeals court ruled that a workers’ compensation carrier can sue the tortfeasor in an auto accident case even though petitioner, who wasn’t permanently injured, could not. This decision will be of interest to all workers’ compensation carriers in New Jersey. Continue reading New Case Decision: New Jersey Workers’ Compensation Carriers Can Subrogate Minor Injuries Even Where Petitioner Could Not

Video: Maximizing Recovery via Reimbursement and Subrogation Under New Jersey Section 40

Attorneys Christopher Major and Greg Lois present a webinar on carrier recovery through reimbursement and subrogation under New Jersey’s Section 40 (N.J.S.A. 34:15-40). They discuss the impact of recent cases, such as the December 11, 2017 Supreme Court decision in Vitale v. Schering Plough and the November 22, 2017 Appellate Decision in Pino v. Polanco. The attorneys discuss reimbursement to the carrier/employer from the proceeds of civil actions as well as tactics for maximizing recovery – including practical negotiation tips for dealing with plaintiff’s attorneys who always demand a lien reduction to “1/3rd.”

Subject: New Jersey, Workers’ Compensation Law, Exposure, Permanency, MMI
Date Presented: December 26, 2017
Presenter(s): Christopher Major and Greg Lois
Run time: 29:42

Continue reading Video: Maximizing Recovery via Reimbursement and Subrogation Under New Jersey Section 40

Video: Section 29 Reimbursement, Lien recovery, and Subrogation in New York

Attorneys Christopher Major and Glenn Johnston lead a presentation on Section 29 reimbursement and subrogation in New York workers’ compensation claims. The attorneys discuss reimbursement to the carrier/employer from the proceeds of civil actions as well as tactics for maximizing recovery – including negotiation tips for dealing with plaintiff’s attorneys who always demand a lien reduction to “1/3rd.”

Subject: New York, Workers’ Compensation Law, LWEC, Permanency, Exposure
Date Presented: December 18, 2017
Presenter(s): Christopher Major and Glenn Johnston
Run time: 22:51


Continue reading Video: Section 29 Reimbursement, Lien recovery, and Subrogation in New York

No Double Recovery: Don’t Accept “One Third Each”

When seeking reimbursement on behalf of a carrier or employer under New York Workers’ Compensation Law Section 29 (“Section 29”) or N.J.S.A. 34:15-40 (“Section 40”) a particular scenario arises all too frequently: one of the other parties asking that the reimbursement right be reduced by equal measure against all parties; the “one-third, one-thirds one-third” offer. The carrier does not have to accept this reimbursement offer and in many cases should not!

At the most simplified level there are three prospective recipients of any settlement value in a civil case that involves a Section 29 or Section 40 lien: the claimant/petitioner, the third-party plaintiff’s attorney and the employer or workers’ compensation carrier. In this basic three-party structure, an even split of the settlement proceeds in to thirds would seem to make logical sense. In fact, the third-party plaintiff’s attorney will frequently assert that this is the “norm,” and that this is how “every case” ultimately resolves. They will also usually proffer some rationale as to why the Section 29 or Section 40 lien should be compromised, typically regarding issues with liability and allegedly poor chances of success at trial. Essentially, their argument is that some reimbursement is better than no reimbursement, and therefore the lien should be compromised to induce the claimant/petitioner’s consent to settlement. When it comes to such arguments, however, it is vital to keep in mind the legislative intent behind Section 29 and Section 40 and the protection the courts give that intent.

Continue reading No Double Recovery: Don’t Accept “One Third Each”

Properly Calculating Your Section 40 Reimbursement in New Jersey

N.J.S.A. 34:15-40 (“Section 40”) grants a right of reimbursement to workers’ compensation carriers. This reimbursement is to the extent of benefits paid to an injured worker should that injured worker file a third-party civil suit against the responsible tortfeasor. See N.J.S.A. 34:15-40. The limitations on this recovery are set forth in subsections (b) and (c) of Section 40, which both provide that any third-party recovery is reduced by the employee’s “expenses of suit” and the attorney’s fee. Subsection (e) goes on to define “expenses of suit” as an amount not to exceed $750.00 and the attorney’s fee as an amount not to exceed 1/3rd of the ultimate settlement proceeds.

While the language of the statute is plain on its face, there is confusion regarding the precise application of the aforementioned reductions. For instance, it is common knowledge that, in a typical civil suit settlement, disbursements come “off the top” of the settlement proceeds. Disbursements are, by their very nature, not part of the amount to be divided amongst the intended recipients. By way of illustration, assume a civil case settles for $100,000.00 and there are exactly $10,000.00 in disbursements. Under such a structure, the plaintiff’s attorney would receive $30,000.00 as their fee and the plaintiff would receive the remaining $60,000.00.  Continue reading Properly Calculating Your Section 40 Reimbursement in New Jersey