The Virginia Court of Appeals recently defied the Trial Lawyers Association and gave a big boost in the arm to Special Arbitration of workers’ compensation liens. Arbitration of workers’ compensation third-party claims provides an interesting and often under-utilized avenue for assisting subrogation professionals when it comes to smaller workers’ compensation liens. All too often, these liens are forgotten or left on the table because they are simply not cost-effective to pursue in litigation. In Virginia, at least, they may now also save you from having to pay attorneys’ fees/costs to plaintiff’s counsel.

Thirty-three years of subrogating workers’ compensation claims in all 50 states and appearing before countless Supreme Courts, Courts of Appeal, and legislative committees as a defender of this right of subrogation in the face of fierce opposition, has given me a keen and unique insight into which states are friendly toward subrogation and which are not. In creating a list of the ten states most favorable and the ten states least favorable to workers’ compensation subrogation, I have taken into account a number of variables, some of which transcend a state’s workers’ compensation laws and decisions.

For over a decade, state and federal courts throughout the nation have wrestled with the issue of whether FEHBA (Federal Employees Health Benefit Act of 1959) preempts state subrogation laws. Some courts have recognized the primacy of FEHBA over state subrogation law and some have resisted federal preemption and denied the subrogation rights of FEHBA plans. Missouri and Arizona are prominent examples, particularly in the cases of Nevils and Kobold, in which both courts ruled that FEHBA plans’ subrogation and reimbursement provisions fell outside the scope of the preemption provision and state law barred their claims. In June 2015, the Office of Personnel Management promulgated a new regulation interpreting FEHBA’s preemption provision. Within a week, the U.S. Supreme Court granted certiorari in Nevils and Kobold, vacated the judgments, and remanded them for further consideration in light of the new regulations.

Gary Wickert will be presenting a live webinar on New Jersey Automobile Subrogation: The Nuts and Bolts on June 14, 2016 from 10:00-11:00 a.m. (CDT). This webinar is free to attend and will cover topics such as PIP, Med Pay, UM/UIM, property claims, deductible reimbursement, no-fault subrogation, suspension of driver’s licenses, and much more. Special Guest Panelist: Attorney Steven Kraus, with the Law Offices of Steven G. Kraus, in Warren, New Jersey. For more information on this webinar and/or to register for it, HERE.