J. Michael Hayes Blog - "A New Frontier - Workers' Compensation As Subrogation" see article in NYSTLA "Bill of Particulars" Summer/Fall 2008

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Posted by: host	11/23/2008 10:03 AM
A surprise to all would be that Worker's Compensation may not have a lien on the recovery. Prior to Ahlborn, it had been held that the pain and suffering recovery included Worker's Compensation payments and they were repaid first. The US Supreme Court in Ahlborn would seem to create a question. This alternative that permits more of the recovery to go to the client should be explored and, if necessary, litigated! 10-18-08 There are two motions pending before J. Sconiers to sever the Workers' Compensation recovery claim from the personal injury actions. She has reserved. It is interesting that when WC started, New York was a contributory negligence state. If a Plaintiff got a recovery, it was not reduced for his own comparative fault. It was all or nothing. Also, there were only "general verdicts" as opposed to itemized verdicts of today. The net result is that all aspects of negligence and subrogation have changed - but the insurance carriers want the status quo because it is to their economic benefit. There will come a time when the courts and the carriers will perceive this reality. Until then, Plaintiff's attorneys must aggressively fight the establishment on their behalf.

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Re: Worker's Compensation	By WC atty on 11/4/2008 1:57 PM
The workers' compensation lien is inviolable. Ahlborn does NOT apply.<br><br>http://www.courts.state.ny.us/REPORTER/3dseries/2008/2008_28404.htm

Re: Worker's Compensation	By WC atty on 11/4/2008 1:57 PM
The workers' compensation lien is inviolable. Ahlborn does NOT apply.<br><br>http://www.courts.state.ny.us/REPORTER/3dseries/2008/2008_28404.htm

Re: "A New Frontier - Workers' Compensation As Subrogation" see article in NYSTLA "Bill of Particulars" Summer/Fall 2008

By J. Michael on 12/5/2008 8:56 AM

WC atty's observation is correct as it recites the status quo. However, the world has changed since the WC law was enacted in 1922. We now have comparative negligence as opposed to contributory negligence; we now have itemized verdicts setting forth specific amounts for medical, wages and pain and suffering distinctions that did not exist in 1922. This is a Subrogation statute. Whether the courts follow the law or follow the money is yet to be seen. The emperical facts are that this is Subrogation and the former practice should be modified. However, the easy approach is to follow the crowd and pay WC rather than your client. To me, the client comes first and it is he that I fight for!

Re: "A New Frontier - Workers' Compensation As Subrogation" see article in NYSTLA "Bill of Particulars" Summer/Fall 2008

By J. Michael on 12/26/2008 6:50 PM

Compensation carriers have counsel on staff. Since the W.C. statute dictates a fee schedule, selecting counsel from the private sector to replace the injured workers attorney would neither prejudice nor cost the carrier anything more than it is already paying. If counsel are on salary, then the carrier or the State could keep the attorney fees thereby increasing their recovery over what they are taking in at present. There is no prejudice that accrues if the compensation recovery case is severed from the personal injury case. Conflicts of interest are eliminated. This transition has already begun in the private health care field. Intervention is becoming standard with carriers retaining counsel of their choosing and compensating them according to their own dictates as opposed to a statute or the standard plaintiff’s retainer. Certainly, it is easier to simply compel a plaintiff’s attorney to do the work of the State. Workers' Compensation carriers and the State may object at first. The perceived “threat” is that the State would be afraid that it will lose revenues. However, the State certainly is able to adapt and may recover as much or more through a modified system. The State itself has thousands of attorneys and staff in its employ already monitoring these claims. All that is necessary is that it assume a little more responsibility . It creates more work and jobs for itself while collecting more revenues. This could be the best of both worlds."<br>

Re: "A New Frontier - Workers' Compensation As Subrogation" see article in NYSTLA "Bill of Particulars" Summer/Fall 2008	By Bonnie O'B Erie Bar Journal on 1/10/2009 6:32 AM
Your article is excellent and it will appear in the February issue. Thank you again for taking the time to write such a thoughtful piece. <br>

Re: "A New Frontier - Workers' Compensation As Subrogation" see article in NYSTLA "Bill of Particulars" Summer/Fall 2008	By Larry R, Esq. on 2/2/2009 6:41 PM
Mike, Just read your piece in the Bar Bulletin on "liens". Absolutely brilliant! Love your analysis. Problem is it makes too much sense that the courts/legislature would actually accept it. I would suggest publishing it with NYSTLA as well as the NYS Academy of Trial Lawyers, etc. etc. Larry

Inpact of Fasso v Doerr, Ct Appeals, Feb, 2009	By David K, Esq. Auburn, NY on 2/26/2009 9:47 AM
I like the position with workers comp (I understand your argument about it being a subro claim-and the conflict-) but I think the courts are going to treat this as a lien to protect the State Fund

Re: Fasso v Doerr	By Paul I, Esq. on 2/26/2009 10:02 AM
Michael; I think that you are on to something here. Good Stuff! Good Luck<br>

Re: "A New Frontier - Workers' Compensation As Subrogation" see article in NYSTLA "Bill of Particulars" Summer/Fall 2008	By WC Atty on 8/11/2009 10:15 AM
UPDATE: Justice Sconiers has denied the motions to "sever" the WC liens from the personal injury actions. Will we be seeing an appeal or book/article revisions?

Denial By Sconiers for severence	By J. Michael on 8/25/2009 3:24 PM
You are correct. The trial court applied the status quo, found it inequitable, but did not venture further. There will be an appeal. I submit that the rationale holds though it may be inconvenient for the establishment....

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