can a work/comp ins. com. take 1/3 of a 3rd party settlement?
i received a $100,000.00 settlement for a 3rd party case. my atty. got 1/3, i got 1/3, and the work/comp ins. company received 1/3. (california) can the ins. com. legally take 1/3 of “my” personal injury settlement? should my atty. have given the ins. com. 1/3 of my settlement?
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It depends on the state for the workers comp.
I know in NY the more they give the less they want. And I know that makes no sense.
That bit about the atty fees is NOT true. Not in Calif anyway.
There may be attys fees on the PI claim, AND the WC claim. These
are two seperate cases and the attys are due fees based on the
amount of work performed in the WC claim, and the fee agreement in
the PI claim. WC fees are awarded by a WCAB judge. Employer/WC
carrier are entitled to subrogation rights. Any benefits they have
paid are to be reimbursed from your PI case. AND… in case you
haven’t run into this yet, they can and will take either a cash
payment to compensate for future medical care, OR a credit. If they
take a credit against money you receive in the PI settlement you
will use that money to pay for a % of the medical care going
forward. Or, all of the medical costs for your injury until that
money has been exhausted. You cannot receive benefits/money from
more than one provider or insurance company for the same loss. That
would be double dipping and it’s not permitted. You should also
know, under the new Medicare reporting rules, this claim will be
reported to CMS/Medicare and tracked. When you become Medicare
eligible, you will have to prove you have exhausted the money you
receive for future medical care before Medicare will pay benefits
for treatment to your injury. You are not going to be paid benefits
in the WC claim, and take money in the 3rd party claim and spend it
any way you wish. You can’t ”make money” by being disabled due to
injury in your workplace. THe 3rd party case can and will close.
The WC claim remains open with medical for life, or until you cash
out the medical benefit. The WC claim is about paying benefits due,
not settlement money.
The WC carrier can take whatever it cashed out in the WC case. It is not a contingency or a percentage. It is a dollar for dollar payback of what they paid in temporary total, partial, permanent, medical and related benefits. The third party suit proceeds make the insurance company whole for the funds they paid you. It sounds that in your case, it just so happens that it was a third. By the way, the attorney’s fees can NOT include fees from the WC and Personal Injury suit. So if you paid the attorney 20% of the WC, his/her TOTAL compensation cannot be more than what is agreed to on the PI. Not the PI and WC.