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CA how to protect third party pain and suffering settlement from carrier liens? - Printable Version

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CA how to protect third party pain and suffering settlement from carrier liens? - EJL - 05-19-2016

2011 workplace assault by a client in a program.
Have settlement offer for third party negligence. How might settlement be constructed to prevent defense from taking it?
Also have an established medical trust-can a pain and suffering award go into the trust to protect SS/low income benfits?
Work comp case status is going through PQME process.


RE: CA how to protect third party pain and suffering settlement from carrier liens? - 1171 - 05-19-2016

It's not about the wording or structure so much as how the issues are developed and negotiated.

California uses the legal theory of "contributory negligence" to balance the subrogation rights of the employer/carrier.
Talk to your atty about developing evidence on the employers role in allowing the circumstance of the assault to develop. That can help reduce the amount of their recapture.
subrogation can also be a combination of cash and future credit. Future credits often get overlooked during a long running comp claim. so negotiate a good portion as future cred to minimize the cash pay back.
If you are at MMI and the factors are right, a third party C&R can settle both claims at once with fair value to you.
Discuss these options with your atty.
Often times the carrier's civil litigation unit can be very helpful in supporting a higher third party recovery(as it makes their subrogation easier). The increased recovery amount can offset their liens so your net is better.


RE: CA how to protect third party pain and suffering settlement from carrier liens? - sergios - 05-22-2016

1171 is right, structure has nothing to do with that.