The Subrogation Strategist

Brett Tishler, Partner, and Michael Abed, Associate, are back to host the newest episode of Subro Sessions. This is the first of a two-part podcast series, entitled “Workers’ Compensation Subrogation Tales by the Water Cooler: Part I – How to Handle a Case—AKA—What Are We Getting Ourselves Into?” Brett and Michael are joined by a special guest, Rob Caplan, Partner, to trade stories and discuss the many moving parts in workers’ compensation #subrogation—and the many moving parts to consider when dealing with a new claim in order to obtain a recovery.

Mark your ... Continue Reading

This is the second part of the three-part series entitled “Help Me Help You - How Working With Claimant’s Counsel Can Maximize Your Lien Recovery.”

In “Part 2: The Investigation,” Partner Brett Tishler and Associate Michael Abed take a deeper dive into the crucial steps that subrogation professionals execute immediately after a workers’ compensation third party claim is filed. Some of the topics covered in this episode include, gathering facts from the insured/employer, talking to witnesses, gaining access to the premises and gathering information about the ... Continue Reading

When the direct door to a subrogation recovery closes, the reimbursement door remains open.

The United States District Court for the Northern District of Illinois, construing Indiana law, recently clarified the distinction between workers’ compensation subrogation rights and workers’ compensation lien rights. Workers’ compensation subrogation professionals should always keep this critical difference between direct subrogation and reimbursement in mind when evaluating any claim.Continue Reading

Pursuant to the equitable made whole doctrine, where there are limited funds available, an insurer cannot pursue subrogation until the insured has been made whole – i.e., fully compensated – for its injuries. In City of Asbury Park v. Star Ins. Co., No. A-20, 083371, 2020 N.J. LEXIS 746, the Supreme Court of New Jersey (Supreme Court) addressed the question of whether the equitable made whole doctrine applies to first-dollar risk an insured takes on, such as a deductible or self-insured retention (SIR). More specifically, the Supreme Court considered whether the insured, here the City of Asbury Park, was entitled to recover all its $400,000 SIR before the insurer, Star Insurance Company (Insurer) could assert its subrogation rights. The court held that the made whole doctrine does not apply to first-dollar risk allocated to the insured.Continue Reading

The Superior Court of New Jersey, Appellate Division, recently held, in N. J. Transit Corp v. Sanchez, No. A-0761-17T3, 2018 N.J. Super. LEXIS 168 (December 4, 2018), that pursuant to N.J.S.A. 34:15-40(f) (Section 40) of New Jersey’s Workers’ Compensation Act (WCA), workers’ compensation carriers have, without question, the independent right to seek reimbursement from negligent tortfeasors for economic damages. The court’s ruling cleared up years of confusion regarding the scope of recoverability of workers’ compensation subrogation liens. As noted by the court, a carrier’s workers’ compensation lien is NOT affected by New Jersey’s verbal threshold and no-fault statutes.Continue Reading

How the Pennsylvania Supreme Court’s Decision in Kamara Changes the Legal Landscape for Workers’ Compensation Subrogation and Successfully Moving Forward

On November 21, 2018, the Pennsylvania Supreme Court, in a 5-4 decision, reversed the Superior Court stating a right of action in Pennsylvania remains with the injured employee. Specifically, the court held that “unless the injured employee assigns her cause of action or voluntarily joins the litigation as a party plaintiff, the insurer may not enforce its statutory right to subrogation by filing an action directly against the tortfeasor.”Continue Reading

On June 19, 2018, the Pennsylvania Supreme Court decided Whitmoyer v. WCAB (Mountain Country Meats), No. 52 MAP 2017, 2018 Pa. Lexis 2995. The decision reversed longstanding Pennsylvania law and the Commonwealth Court’s decision. The net result of this decision: an insurer can no longer assert a future credit on projected medical benefit payments when settling a third-party case. However, insurers may continue to assert a future credit on indemnity payments.Continue Reading

Special Arbitration, a long-existing, highly efficient and cost-effective venue for resolving workers’ compensation subrogation liens, is being challenged as an appropriate forum in which to resolve lien disputes. As a result, Special Arbitration may soon be an unavailable forum for workers’ compensation insurance carriers and employers in some states.Continue Reading

Pennsylvania has maintained its own peculiar brand of strict products liability law ever since the Supreme Court decided Azzarello v. Black Bros. Co., Inc.[1] in 1978. Maligned by many as “absurd and unworkable,”[2] if “excessively” orientated towards plaintiffs,[3] Azzarello’s unique approach to the Restatement (Second) of Torts § 402A (1965)[4] has recently been judicially consigned to the dustbin of history.

In Tincher v. Omega Flex, Inc.,[5] decided on November 19, 2014, the Pennsylvania Supreme Court expressly ... Continue Reading

In a decision handed down yesterday,[1] the Appeals Court of Massachusetts upheld the vitality of Curry v. Great Am. Ins. Co., 954 N.E.2d 580 (Mass. App. Ct. 2011), which limits workers’ compensation insurers’ lien recovery rights. Under Curry, damages for conscious pain and suffering as well as for loss of consortium are not reimbursable to the insurer under G.L. c. 152, § 15.[2]

Such injuries, according to the Curry court, “are not compensable injuries,” and “entirely independent and distinct from the personal injury claims of the employee.”[3] For the court in ... Continue Reading

The North Carolina workers’ compensation subrogation statute does not permit employers or their compensation insurers to claim a “future credit” against future exposure.¹  In this respect, North Carolina departs from the classic rule in the overwhelming majority of jurisdictions.²

Despite this minority position as to future credit, however, the North Carolina Workers’ Compensation Act does require courts to consider workers’ compensation insurers’ future “exposure” when determining if and how much of the insurer’s lien will be paid back.³  An ... Continue Reading

In Michigan, an employee’s entitlement to compensation for injuries sustained in a motor vehicle accident is governed by both the Workers’ Disability Compensation Act of 1969, MICH. COMP. LAWS ANN. § 418.801 et seq., and Chapter 31 of The Insurance Code of 1956, MICH. COMP. LAWS ANN. § 500.3101 et seq., commonly referred to as the “no-fault act.” Polkosnik v. United Canada Ins. Co., 421 N.W.2d 241, 242 (Mich. App. 1988).

PIP1 benefits payable arising from a motor vehicle accident in Michigan include, principally, (1) medical benefits unlimited in amount and ... Continue Reading

New York’s “no-fault” legislation reflects a public policy designed to make the insurer of first-party benefits absorb the economic impact of loss without resort to reimbursement from its insured or, by subrogation, from the tortfeasor. Country Wide Ins. Co. v. Osathanugrah, 94 A.D.2d 513, 515 (N.Y. 1st Dept. 1983).  The no-fault concept embodied in New York’s Insurance Law modifies the common law system of reparation for personal injuries under tort law.  Safeco Ins. Co. of Am. v. Jamaica Water Supply Co., 83 A.D.2d 427, 431 (N.Y. 2nd Dept. 1981).  “[F]irst party ... Continue Reading

In Arkansas, a workers’ compensation carrier’s subrogated recovery is subject to a determination of whether the injured worker—or, as the case may be, the worker’s surviving beneficiaries—has been “made whole” by the worker’s recovery against the third party tortfeasor.  See, e.g., Yancey v. B & B Supply, 213 S.W.3d 657, 659 (Ark. App. 2005) (“An insured’s right to be made whole takes precedence over an insurer’s right to subrogation, and an insured must be fully compensated before the insurer's right to subrogation arises.”) 1 More often than ... Continue Reading