Workers’ Compensation Subrogation In All 50 States (6th Edition) Just Released!

Juris Publishing, Inc. has released the latest and most comprehensive edition of Workers’ Compensation Subrogation In All 50 States, the firm’s unique treatise on the subject. The book is carried on the shelves of every law school in the country and is considered the authoritative resource on the subject. There are very few areas in which the laws of each state vary more and are applied as differently, than in the area of workers’ compensation subrogation. This book is intended to introduce the workers’ compensation claims handler, in-house counsel, and subrogation professionals to some of the more esoteric and complex subrogation issues encountered in today’s workers’ compensation insurance subrogation marketplace. The all-new Sixth Edition has been revised and expanded to reflect the latest practice developments.

Workers’ compensation subrogation continues to change and adapt, as trial lawyers prod its weak points and capitalize on confusing areas of the law. There have been numerous changes in workers’ compensation statutes and case law in many states since the last edition. New developments and clarification of workers’ compensation subrogation rights in Alabama have necessitated a re-writing of the Alabama chapter in order to more clearly illustrate the confusing reimbursement/subrogation rights of a carrier, as well as calculations and procedural steps which must be undertaken in order to calculate and properly document any future credit it may be entitled to. The confusing state of the law in Delaware with regard to the interface between workers’ compensation and PIP no-fault benefits is discussed. Significant law regarding the Louisiana Anti-Indemnity Act, cases interpreting it, and its effect on both indemnity and waiver of subrogation clauses has been added. A new section has been added to the Michigan chapter dealing with the confusing concept of no-fault carriers seeking reimbursement from carriers. New case law has been added to the New Jersey chapter regarding the controversial “Section 20” settlements and whether and when they provide the carrier with a statutory lien under Section 40. New York law regarding payment of a carrier’s equitable share of attorney’s fees and litigation costs under the Kelly or Burns formulas has been completely revised and summarized to reflect recent decisions on the issue. Oklahoma completely repealed their old statutes and laws dealing with workers’ compensation subrogation and have enacted new ones. These statutes dramatically change the workers’ compensation landscape in Oklahoma, including changing the name of their workers’ compensation laws and adding a new ability to subrogate for death benefits. The law regarding future credits in Tennessee has been rewritten as a result of the 2013 Supreme Court decision of Cooper v. Logistics Insight Corp. A more thorough treatment of subrogation rights for payments made both “to” and “by” the Texas Subsequent Injury Fund is covered. Virginia’s confusing statutory employer laws, which often make the difference between a subrogation recovery and no recovery at all, and Virginia’s four active tests for determining whether an entity is immune from a third-party action are thoroughly reviewed.

The 6th Edition for the first time includes all-new and easy-to-locate subheadings under the “Third Parties” section of each state’s chapter. These guides make using the book easier, delineating the various categories of potential third parties discussed in the subsection. The chapter on Longshore and Harbor Workers’ Compensation (LHWCA) was edited to include information on the Special Fund and its rights of reimbursement, as well as additional case law and explanations regarding when and how a “vessel” can be sued as a third party for purposes of subrogation. A new section on the Jones Act and the interplay between the LHWCA and the Jones Act with regard to an employer/carrier’s right of subrogation/reimbursement is included. Additional law and cases have been added with regard to credits obtainable by carriers when they pay LHWCA benefits but later face Jones Act actions, and vice-versa. The new edition introduces a detailed treatment of the War Hazards Compensation Act and Defense Base Act, under which carriers are paying significant benefits to employees of U.S. government contractors overseas and in war zones, as well as the subrogation and reimbursement opportunities available under these laws. Entire new sections have been added to deal with anti-indemnity statutes and their effect on subrogation and waivers of subrogation. The state chapters for Texas, Louisiana, New Mexico, and Wyoming have been amended to reflect their unique anti-indemnity legislation and case law interpreting it. New state-by-state law and regulations regarding whether and to what extent a carrier can recover case management costs, medical bill audit fees, rehabilitation benefits, nurse case worker fees, and the like, are included, for those states which have addressed or commented on this issue. New law has been added to the chapters for each state with regard to the role Owner-Controlled Insurance Programs (“wrap-up programs”) play in workers’ compensation subrogation and their effect on recoveries. This new 6th Edition is the most complete and up-to-date edition yet.

Workers’ Compensation Subrogation In All 50 States is the most complete and thorough treatise covering workers’ compensation subrogation ever published. It covers the following issues in all 50 states:

  • Allocating Third-Party Recoveries
  • Attorney’s Fees
  • Borrowed Servant Doctrine
  • Conversion of Workers’ Compensation Liens
  • Costs and Expenses
  • Dual Capacity Doctrine
  • Equitable Subrogation/Contribution
  • Exclusivity Rule Barring Action Against Employer
  • How To Calculate Your Credit/Advance In Each State
  • Intentional Acts
  • Joint Ventures
  • Made Whole Doctrine As Applied To Workers’ Compensation Subrogation
  • Necessity of Intervention
  • Lien Reduction Statutes
  • Staff Leasing Services and Temporary Employment Agencies
  • Statutory Subrogation Rights
  • Subrogating Against UM/UIM Benefits
  • Subrogating In Medical Malpractice Cases
  • Subrogating In Legal Malpractice Cases
  • Waivers of Subrogation
  • Who Qualifies As A Third Party
  • Other Workers’ Compensation Subrogation-Related Issues

In addition to being an excellent primer on workers’ compensation subrogation, suitable for new subrogation professionals and seasoned veterans, the book also contains a detailed synopsis of the workers’ compensation subrogation laws in each of the 50 states. It is a must for anyone with multi-state subrogation responsibilities. Complete with diagrams, references and thousands of footnotes, this is the most ambitious workers’ compensation subrogation project ever undertaken.

The following issues and topics are covered in detail for each of the 50 states:

Statutory Subrogation Rights

  • Identifies the statutory authority for workers’ compensation subrogation in that state.
  • Is an election necessary by the worker?
  • Who can bring a third-party action (plaintiff, carrier, employer, or all of the above)?
  • When and must a third-party action be brought?
  • What are the rights of a carrier to intervene in an existing third-party action filed by a worker?
  • Will a carrier’s subrogation interest be barred if not brought timely?

Third Parties

  • Who can be sued as third parties in a third-party action?
  • Can a co-employee be sued and under what circumstances?
  • Can an uninsured/underinsured carrier be a “third party” under the laws of the state?
  • Is there a dual capacity or borrowed servant doctrine which affects the ability of a carrier to effectively subrogate?
  • What is the state’s workers’ compensation bar?
  • Are there any specific restrictions regarding subrogation against a subcontractor or a subcontractor’s employee in a construction situation?
  • Under what circumstances can the employer be sued?
  • Can a carrier subrogate to the benefits of a recovery in a legal or medical malpractice action?

Allocation of Third-Party Recovery

  • How and when does the carrier recover its subrogated interest?
  • Does the carrier recover past benefits only or also the present value of future benefits which it owes under the Workers’ Compensation Act of that state?
  • Is there a formula to determine how a third-party recovery is allocated?
  • What happens to the total recovery and how is it applied?
  • Can a carrier recover benefits paid by a third party or recovered in a third-party action which relate to loss of consortium, or non-economic damages such as pain and suffering, mental anguish, or punitive damages?
  • Does the employer’s negligence reduce the recovery by the worker or carrier?

Attorneys’ Fees/Costs

  • Can the plaintiff’s attorney recover attorneys’ fees and/or costs out of the carrier’s subrogated recovery and under what circumstances?
  • How are attorneys’ fees and costs handled if the carrier is also represented by subrogation counsel, intervenes into the third-party action and actively represents its interest?
  • What if the carrier isn’t represented?
  • Can a plaintiff’s attorney recover attorneys’ fees based on the value of past benefits only or will he be able to recover attorneys’ fees based on the future benefits/credit recovered by the carrier?
  • Must a carrier bear its proportionate share of expenses as many states require, and what does that really mean?

Credit/Advance

  • Can a carrier take a vacation from paying workers’ compensation benefits once a worker makes a third-party recovery?
  • How is the credit calculated under state law?
  • Does the carrier have to do anything special to obtain the credit, such as filing with the Workers’ Compensation Commission?
  • Does the carrier get a credit toward future compensation benefits it owes or does it actually get to collect the present value of the future benefits it owes and still be obligated to pay the scheduled benefits in the future?

Statutes of Limitation

  • What are the applicable statutes of limitation or statutes of repose that may be applicable to third-party subrogation actions?

Related Subrogation Issues

  • Are there any other issues or statutes which affect a carrier’s right of subrogation, such as the Made Whole Doctrine, Common Fund Doctrine, or anti-subrogation statutes?
  • Are there lien reduction statutes, such as those in Indiana, which affect a carrier’s right of recovery?
  • Does the state have no-fault laws which complicate workers’ compensation subrogation involving an auto accident, such as exist in Michigan and Colorado?
  • What are the carrier’s options if the worker and his attorney simply refuse to repay a carrier’s lien after settling a third-party action?
  • If the worker fails to repay the carrier, is there a cause of action for conversion of a carrier’s subrogation interest or can the carrier still proceed against the third-party tortfeasor to recover its subrogation interest?

In summary, the Sixth Edition includes countless new case law decisions and legislative changes to workers’ compensation subrogation statutes across the country that significantly affect a carrier’s rights to reimbursement and/or subrogation. The Sixth Edition can be reviewed and/or purchased at the website of Juris Publishing, Inc. HERE, on the MWL website HERE, or on Amazon.com HERE. Through Juris Publishing, Inc., you can purchase this book in a hard cover or digital format. Also, individual chapters can be purchased in digital format. Juris Publishing, Inc., for a limited time, is offering a 20% discount on the book if you order it through them using the coupon code WKCP20.

If you should have any questions regarding this book or subrogation in general, please contact Gary Wickert at gwickert@mwl-law.com.

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Gary L. Wickert
Partner

Gary L. Wickert is an insurance trial lawyer and partner with the law firm of Matthiesen, Wickert & Lehrer, S.C. Gary has nearly four decades of litigation experience and is regarded as one of the world’s leading experts on insurance subrogation. He is the author of several subrogation books and legal treatises and a national and international speaker and lecturer on subrogation and motivational topics.