Settling 3rd party case but not the workers comp claim

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understand the ramifications of their choices. Lawyers and injured individuals from all over the United States and the world call upon us because of our experience with cases that involve on-the-job accidents AND personal injury or product liability claims. The workers compensation insurance companies always want their money back, but rarely tell injured workers about all the benefits to which they may be entitled. The personal injury insurance company uses the workers comp files against the plaintiff. It’s no wonder the injured plaintiff feels like she is “between a rock and a hard place” !!!

One method that has been used here in Herndon at the Landau Law SHop is to mediate the personal injury (tort) case, and contemporaneously settle the workers comp case. At Abrams Landau we try to avoid having the comp lien “eat up” the lion’s share of the “third party” personal injury case settlement. As for reaching settlement of the tort claim at Mediation while not running afoul of the mandate that you have the carrier/employer’s assent, there are 3 ways to do it:

1. Get an agreement ahead of time:

a. Purely as an example of a case with a $60,000 comp lien:

“We, the comp carrier/employer want 60% (the full amount less the pro rata share of attorney fees and costs) on our lien if you get >$400,000;

If you get $240-400,000, we get 50%;

If you get $100-240,000 we get 40%;

If you get <$100,000, it’s a 3-way split…”

2. Have the contact info for the “person with authority to settle” or compromise the lien, and a commitment from them that they will be available, so you can make they call on the day of the Mediation and they can sign off on whatever deal you agree upon

3. If #1 and #2 don’t pan out, accept settlement CONTINGENT on employer’s or their insurance company’s assent. Use Virginia Code section 8.01-424.1 (see below) to drag the comp carrier to Circuit Court for unreasonably withholding their “OK.”

[“Workers Compensation; third party claims” 8.01-424.1 provides that when an employer has a subrogation interest in an employee’s workers compensation claim against a third party and the employer fails to consent to a settlement offer acceptable to the employee, the employee may petition the court (stating the compromise) where the action is pending for approval of the settlement. If no action s pending or the action is pending outside the Commonwealth, the Petition may be filed in any circuit court in which venue lies as to the employee. The court may approve the settlement and after all appeals are exhausted and because the employer’s subrogation interest has not been compromised, such approval is deemed consent to the settlement by the employer. ]

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