{"id":33464,"date":"2016-03-31T19:22:31","date_gmt":"2016-04-01T00:22:31","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/uncategorized\/outwitting-your-opponent-buying-the-comp-lien-in-third-party.html"},"modified":"2017-10-05T13:59:41","modified_gmt":"2017-10-05T18:59:41","slug":"outwitting-your-opponent-buying-the-comp-lien-in-third-party","status":"publish","type":"corporate","link":"https:\/\/corporate.findlaw.com\/human-resources\/outwitting-your-opponent-buying-the-comp-lien-in-third-party.html","title":{"rendered":"Outwitting Your Opponent: Buying The Comp Lien In Third Party Litigation"},"content":{"rendered":"
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The last updated date refers to the last time this article was reviewed by FindLaw or one of our contributing authors<\/a>. We make every effort to keep our articles updated. For information regarding a specific legal issue affecting you, please contact an attorney in your area<\/a>.<\/em><\/p>\n\n <\/div>\n <\/details>\n<\/section>\n\n\n\n

Successfully defending third party litigation and providing value to our clients requires imagination, resourcefulness and plain hard work. Defense counsel are constantly discovering and exploring the weaknesses and vulnerabilities of cases brought by injured plaintiffs who typically bank on \u201cjury sympathy\u201d to trump logic and reason. One idea recently applied at the suggestion of a valued client involved buying the comp lien.<\/p>\n

Worker’s Compensation Lien<\/b><\/p>\n

How many times has settlement or trial been complicated by the negotiations relative to the workers\u2019 compensation lien<\/a>? Plaintiff\u2019s counsel, usually representing the lien, reports that the \u201ccomp carrier won\u2019t budge\u201d or \u201cI can make the numbers work, you need to increase your offer.\u201d<\/p>\n

Strategically, plaintiff\u2019s counsel is positioned between two natural allies, the employer and third party defendant(s). Both the workers\u2019 compensation carrier and third party carrier want to defeat plaintiff\u2019s claims on damages.<\/p>\n

The employer<\/a> wants to return the claimant to work as soon as possible and limit time lost from work. Similarly, the third party carrier seeks expert testimony that the plaintiff is medically recovered and is able to do his previous job. The comp carrier is holding a lien and the third party carrier is attempting to avoid or limit damages.In the right case, a win-win situation can be crafted.<\/p>\n

Workers’ Compensation In Action<\/b><\/p>\n

Assume that the workers\u2019 compensation carrier has attempted long and hard to return claimant to work. It obtained a favorable Independent Medical Examination<\/a> ("IME") and vocational<\/a> report. The third party carrier also has a favorable medical report (albeit a year or two later), but no vocational expert. A Petition to Terminate, Suspend or Modify is pending, but the outcome is uncertain.<\/p>\n

The lien is represented by the workers\u2019 compensation carrier\u2019s law firm (although plaintiff\u2019s attorney is entitled to a statutory fee). The third party carrier approaches the workers\u2019 compensation carrier with an offer of 50-cents on the dollar in return for an assignment of subrogation rights of compensation benefits paid to date. Who wins, who loses, why?<\/p>\n

Buying the Lien<\/b><\/p>\n

The third party carrier is a winner. They pick up the probable cooperation of the IME doctor and the vocational expert. This testimony almost certainly pre-dates the third party IME. They effectively own the lien and might well recover some or all of this value in a settlement reduction. The third party carrier can certainly file a Motion in Limine at the time of trial to preclude the amounts of medical bills and lost wages that they have now extinguished by buying the lien.<\/p>\n

The workers\u2019 compensation carrier is a winner. They pick up 50-percent of the lien without facing the uncertainties of trial. In a poor liability case, this might be found money. Also the comp carrier can turn around and use the money to potentially settle any future exposure to the claimant.<\/p>\n

Third Party Carrier in Control<\/b><\/p>\n

The plaintiff loses. By buying the lien, the third party carrier has control of a financial piece of plaintiff\u2019s case. Any settlement is reduced at least by the amount of the cost of buying the lien. In the event of a trial, plaintiff\u2019s boardable damages are probably reduced by the lien assignment. If the case goes to judgment, some or all of the lien is credited or returned to the third party carrier.<\/p>\n

This proposed strategy is not suitable in every case involving a workers\u2019 compensation lien. The scenario plays out better if the lien is represented by workers\u2019 compensation defense counsel, although consider the conflict of interest situation faced by plaintiff\u2019s counsel representing the lien who receives an offer to settle the lien and not plaintiff\u2019s case!<\/p>\n

Creativity is the key to quality litigation defense tactics. Here is one more idea for you to consider.<\/p>\n","protected":false},"excerpt":{"rendered":"

Successfully defending third party litigation and providing value to a clients requires imagination, resourcefulness and plain hard work. Defense counsel are constantly discovering and exploring the weaknesses and vulnerabilities of cases. Here you will learn how to outwit your opponent by through buying the comp lien in third party litigation.<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_categories":[6487,6486],"class_list":["post-33464","corporate","type-corporate","status-publish","hentry","corporate_categories-human-resources__employment-laws","corporate_categories-human-resources"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate\/33464","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=33464"}],"wp:term":[{"taxonomy":"corporate_categories","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_categories?post=33464"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}