WORKERS COMPENSATION SUBROGATION IN ALL 50 STATES

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1 MATTHIESEN, WICKERT & LEHRER, S.C E. Sumner Street, P.O. Box , Hartford, WI Phone: (262) Fax: (262) WORKERS COMPENSATION SUBROGATION IN ALL 50 STATES State - Alabama , 6 months after., if shown it could make substantial contribution. :? Employee: (1) Carrier Reimb, Less Fees. (2) Balance to Plaintiff.. immune even if intentional. Fitch Formula. Carrier can recover fees if it files. Carrier owes fees on value of benefits. Use Miller Formula. Alaska , after 1 (1) Litigation Costs (2) Reimb. Reimbursement reduced by % of fault. Cooper Rule. Past and. Active vs. Passive English Rule, reduced by employer s negligence. Arizona (D), after 1 Off Top. lien reduced by % of employer s fault only if verdict. Lien not subject to reduction for atty s fees.. Also reduced by employer s % of fault. Arkansas must give 3 days notice of settling. in reasonable time after s (1) Costs/Fees (2) 1/3 to Worker (3) 2/3 to Carrier (4) Rest to Plaintiff Made Whole Applies California Labor Code 3852, with notice by certified mail. (1) Costs/Fees Based On Services By Both (2) Carrier Reimbursed (3) Rest to Plaintiff Proportional Only if Verdict Apportion, if carrier actively participates., in amount of employee s net recovery. Should file petition with W.C.A.B. Work Product of Matthiesen, Wickert & Lehrer, S.C. 1 Last Updated: 7/9/2015

2 - Colorado , even after runs.? Economic Damages Only. recovery from non-economic damages. t after 7/1/03 Connecticut Only Employee and employer can file. Carrier can file statutory lien and/or intervene in name of the employer. intervene or give notice of lien within 30 days after notice of filing (2) Carrier Reimbursed Lien matically Reduced By 1/3% Delaware 19 Del. C. 2363, if no plaintiff suit by 260 days. 30 days notice by all. s (2) Carrier Reimb, Less Fees District of Columbia months after reward. Carrier must intervene if plaintiff files Formula applies when carrier files Otherwise carrier has only equitable lien. ne, unless agreed to by carrier.. May suit directly if carrier files. Florida Year: 1: Plaintiff 2: Carrier 3: Plaintiff. MUST file tice of Lien. Carrier gets lien, less pro-rata fees, unless plaintiff shows Manfredo Formula.. May also suit if carrier files. 4 Yrs Georgia , after 1 Made Whole Doctrine codified. lien against non-economic damages. Plaintiff s Reduced By s Apportion services by carrier and plaintiff atty. Hawaii 386-8, after 9 months.? (2) Carrier Reimb, Less Fees Apportion activity of each., with approval of Dept. of Labor Idaho Carrier gets first money; dollar for dollar. reduced by % of employer s negligence. Apportion activity of each.. Carrier reimbursed fees on each payment. 2Yrs Illinois 820 I.L.C.S. 305/5(b), 3 months before. Carrier gets first money off top, less atty s fees.. Kotecki only, up to Kotecki cap. Limited to 25%, 25% of benefits owed as atty s fees. Work Product of Matthiesen, Wickert & Lehrer, S.C. 2 Last Updated: 7/9/2015

3 - Indiana , 1 year after. s UM policy only, unless exclusion. Carrier paid first, less fees. Lien Reduction Stat may apply. 25% and 1/3. Past and benefits. obligations end with any recovery.. Iowa 85.22, 90 days Plaintiff must give notice 10 days before trial. INTVN or file tice of Lien within 30 days of receiving employer s notice or lose subro rights. First money past and Settlement of comp claim bars subro. fees paid back as benefits paid.. May also Kansas , after 1 18 months if death. Only to substitute payment. Brabander Formula. Lien extends only to damages that duplicate medical and lost wages.. Brabander Formula. Apportion, If active. fee if gerrymandering.. Reduced by employer s negligence. Kentucky , but only if employee has not filed reimbursement from non-economic damages. Modified Made Whole Doctrine applies.. Third-party can seek contribution from employer, which reduces plaintiff s recovery, lien, and credit. Lien reduced by 100%of plaintiff s fees and costs.. Lien must exceed plaintiff s fees and costs or there s no credit. is reduced by % of employee s and employer s fault. 1 Yr for Louisiana 23:1101, et. seq., with Carrier must consent to settlement. s Policy only, unless UM policy excludes benefits to WC carrier. First money reimb. Reduced by plaintiff s contrib negligence. If settled, carrier can recover max of 50% of lien.. Lien reduced by employer s % of fault. Moody Fees. atty s activity. 1 Yr e 39-A 107, after 30- day demand.?, if plaintiff files. 6 Yrs Maryland Exclusive right for 2 mths after first award of comp. Joint right to file after 2 mths., if malpractice aggravates injury., unless intervention is necessary. Work Product of Matthiesen, Wickert & Lehrer, S.C. 3 Last Updated: 7/9/2015

4 - Massachusetts , after 7 months. Subro possibly not allowed against pain and suffering (Curry Allocation) or against loss of consortium (Eisner Allocation). Apportion, depending on activity. Hunter offset. Pays only fraction of benefits. 3Yrs Michigan , after 1 UM- UIM- Subrogated to economic damages only if no-fault involved. Subro for Expense if -. Franges Formula Minnesota Can also actively participate. (2) 1/3 to Plaintiff (3) Carrier Reimbursed, Less Fees (4) Balance To Plaintiff As (). Naig Settlement Lambertson / Reduction Court has discretion to determine reasonable fees. Carrier can t get fees.. Carrier pays % of benefits because of reduction for costs/fees. 6 Yrs Mississippi , with reasonable intervene unless there s reimburseme nt agreement or the carrier files. (2) Carrier Reimb Fully - Fees Missouri , but not required. UM: UIM: Ruediger Formula 5 Yrs Montana , after 1 Plaintiff must give? First money lien, subject to Made Whole Doctrine., unless carrier waives 50%. Stat. repealed in Nebraska ; equal voice.. Possibly s (2) Carrier Fully Reimb. Division must be agreed to or court approved as fair and equitable.. Only if contractual indemnity. Fees/costs recoverable and allocated if carrier is active. If not, pro-rata deduction. 4 Yrs Nevada 616C.215 Possibly s ne Breen Formula Work Product of Matthiesen, Wickert & Lehrer, S.C. 4 Last Updated: 7/9/2015

5 - New Hampshire 281-A:13, after 9 months. Lien reimbursed off the top, less any fees owed. As Justice May Require. Carrier may recover fees. Fees/costs owed on past and benefits. New Jersey 34:15-40, after 1 Carrier reimbursed, less pro-rata share of fees/costs. Pro-rata of 1/3 fees and up to $750 in costs. New Mexico Reimbursement only. s? Modified Made Whole Doctrine. Subrogable Elements Only., Reimbursement reduced by % of fault. Pro-rata, up to discretion of court. New York Work Comp 29, 30 days Depends (2) Carrier Fully Reimb. (3) Net to Plaintiff Grave Injury Kelly Formula rth Carolina , joint right after 1 year, ending 60 days before., for policies after 10/1/99. (2) Carrier Fully Reimb. (3) Net to Plaintiff Discretionary Reduction (e) Plaintiff Apply. in rth Dakota , after 60 days. Up to 50% of Third- 25% / 1/3% 6 Yrs Ohio Probably Probably Statutory allocation formulas for trials and settlements., but trust set up in amount of s. Oklahoma 85 OSA 348 Accident Prior to 2/1/14 (1) Fees - costs off top. (2) If recovery is compromise settlement approval of court is needed. Balance apportioned as parties may agree. If no agreement, court can equitably apportion. (3) If recovery Is not compromise settlement, Prettyman formula allowed. Only If More Than Lien 85 OSA 43 Accident After 2/1/14?? (1) Fees costs off top. (2) Carrier receives 2/3 of net recovery or its entire lien, whichever is less. (3) Balance to plaintiff.. recover payments in recovery. Work Product of Matthiesen, Wickert & Lehrer, S.C. 5 Last Updated: 7/9/2015

6 - Oregon , 90 days after election.? (2) Carrier Reimb Fully For Past and (3) Carrier Reimb Fully (4) Balance to P- Possible Just and Reasonable Allocation Off The Top. if recovery made before benefits paid. Pennsylvania 77 P.S. 671? : Employee: Other Person: Causes of action prior to 3/20/03 ne ne. First Money Reimbursed Rhode Island , if notice given 26 wks before 2 yr, 8 mths anniversary of accident, can sue after 2 yr, 8 mths date ne ne. First Money Reimbursed South Carolina , after 1 year First money less fees; but equitable reduction. Set by Commission F2 1/3 South Dakota , 39, 40 s (2) Carrier Reimb Fully, Less Fees/ Costs Pro-rata, up to 35%. Allocated between worker and carrier. possibly limited to like damages. Tennessee , after 1 Carrier has additional 6 mths to file for a total of 18 mths. Special Formula First Money. Defendant can introduce evidence to show employer cause in fact. Pro-rata if no active participation by carrier., but no credit against unknown or incalculable med benefits, unless carrier proves likelihood and amount of medicals. 1 Yr Texas s Carrier has first money right of recovery. After 1/1/03 proportional reduction. Apportionment. May suit if carrier sues alone. Work Product of Matthiesen, Wickert & Lehrer, S.C. 6 Last Updated: 7/9/2015

7 - Utah 34 A (2) Carrier Reimb Fully, Less Fees/ Costs. (3) Net to Plaintiff 40% Rule 4 Yrs Vermont Title , after 1 Only if plaintiff is made whole First dollar reimb to carrier, less pro-rata fees. Virginia Probably s First dollar reimb to carrier, less pro-rata fees.. Carrier reimbursed fees on each payment. Washington Possibly s? (2) 25% to Plaintiff (3) Carrier Reimb Fully, Less Fees/ Costs. (4) Net to Plaintiff West Virginia 23-2A-1 s? First dollar recovery after 2003 Amendment. Statutory Reduction. 23-2A-1(b) Wisconsin (1) Atty s (2) 1/3 Balance to Plaintiff (3) Carrier Reimb Fully (4) Balance to Plaintiff s. Carrier can recover s if prosecutes case. Wyoming , 15 days First money right of recovery. 4 Yrs These materials and other materials promulgated by Matthiesen, Wickert & Lehrer, S.C. may become outdated or superseded as time goes by. If you should have questions regarding the current applicability of any topics contained in this publication or any of the publications distributed by Matthiesen, Wickert & Lehrer, S.C., please call Gary Wickert at (800) This publication is intended for the clients and friends of Matthiesen, Wickert & Lehrer, S.C. This information should not be construed as legal advice concerning any legal advice concerning any factual situation and representation of insurance companies and\or individuals by Matthiesen, Wickert & Lehrer, S.C. on specific facts disclosed within the attorney\client relationship. These materials should not used in lieu thereof in anyway. Work Product of Matthiesen, Wickert & Lehrer, S.C. 7 Last Updated: 7/9/2015