Alabama Litigation Review : North Alabama Personal Injury Lawyer & Attorney : Jeff Blackwell : Hornsby, Watson, Hornsby, Blackwell & McKown Law Firm : Commercial Litigation, Workers' Compensation : Huntsville, Decatur, Athens

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link

In Alabama, if you are injured on the job then you are entitled to workers' compensation benefits from your employer.  Each state has some form of workers' compensation system.  As a result, the benefits provided to injured workers can vary from state to state.  Although some large employers are self-insured, most purchase insurance coverage to cover the benefits required by a state's workers' compensation system.

An injured employee can obtain workers' compensation benefits regardless of fault.  However, Alabama law also allows the injured worker to pursue a legal claim against another party who may have caused the injury.  Here is an example -- You are a delivery driver.  You are on the job, driving the company truck, when another driver runs a red light and crashes into your vehicle.  You are hurt.  Under Alabama's workers' compensation system, your employer must provide you medical care and may also have to pay you certain disability benefits set out in the law.  Wait, the collision was really caused by the other driver.  If so, then you can pursue a claim against that other driver.  The workers' compensation system does not provide full compensation for all your damages.  However, you can pursue a claim against the other driver for all your damages.  These cases are commonly referred to as third-party claims by attorneys.

One issue in the scenario I just mentioned where you are hurt on the job due to the fault of another is that the workers' compensation carrier has a lien against your recovery from the responsible person.  That is, if your employer or its insurance company paid benefits for medical treatment or disability, they are entitled to get their money back if you successfully recover damages from the responsible party.  This is a complicated issue and it is important that the lawyer handling such a case have a full understanding of this area of the law.  Although complex, here are several quick tips to consider when handling this type of case:

1. Verify the claimed lien. -- In every case, I ask the insurance carrier for a print-out of all payments.  I often find that the print-out lists administrative and investigation expenses incurred by the carrier.  The carrier's lien only applies to actual expenses for medical or disability payments.  By reviewing the actual payments which comprise the claimed lien you can often eliminate amounts that should not be collected.  Many attorneys simply accept the carrier's statement as to the total lien amount without reviewing all the payments.  You can often save your client considerable money just by performing this simple task.
2. Bring the workers' compensation adjuster to the trial of your other case. -- When I go to trial in a third party case, I typically present the claims adjuster as a witness.  Since the insurance carrier often has a considerable lien, they should not mind sending a representative to trial.  I have found, however, that the carrier is rarely asked to send its adjuster to trial.  I cannot understand why many lawyers would not do this.  I have spoken with jurors after several of these trials and they have all indicated that having an adjuster testify to the significant amount of money spent to treat your client's injuries as well as the fact that they have a lien, has a great impact.  This witness, if handled correctly, can have a tremendous impact in validating the extent of your client's serious injuries.
3. Keep the workers' compensation carrier informed as to all difficulties and problems with your other case so that they will be in a position to negotiate with you in an effort to reduce the lien. -- Too many attorneys ignore this issue until there is a settlement in their third-party case.  Then, they call the adjuster handling the claim expecting to negotiate a reduction in the lien.  Whenever I have a third-party case, I periodically call the adjuster to talk about any difficulties with the case.  If you truly have a difficult third-party case where you might need to compromise in order to settle, don't you think the carrier might be in a better position to also compromise its lien if you have informed them of the issues along the way?
4. Seek discovery of any contracts between your employer and the other party if they had any prior relationship.  -- This is a great issue.  Many third-party cases arise out of construction work or work in an industrial setting.  In order to do this work, your client's employer will often enter into a contract with another business.  If that other business (or one of its employees) caused the injury, make sure you get a copy of the contract.  I have found that these contracts sometimes contain clauses where one party agrees to waive any claims against the other or against any money paid by the other.  Sometimes, these waiver clauses specifically waive liens.  If so, you can argue that there is no lien.  I have successfully argued this on a prior occasion before a trial court in Alabama.  One warning here, however, is that Alabama's Supreme Court has not addressed these clauses, including the issue of whether an employer can waive the lien of its insurance carrier.  This is an interesting issue for appeal.

The issues surrounding liens are often complex.  Too many attorneys either don't understand the issues or don't take the time to deal with them.  However, they are very important issues to consider when handling a claim.  Dealing with these issues correctly can often save your injured client significant money.