Practice Areas
Workers' Compensation Subrogation
Marschhausen & Fitzpatrick, P.C (M&F) has established itself as the leader in the recovery of statutory workers’ compensation medical and wage payments in New York. While many firms focus on a fifty state “jack-of-all trades” approach, M&F has quietly mastered the intricacies of New York law, using the Civil Practice Law and Rules in conjunction with the Workers’ Compensation Law (WCL) to create new opportunities for recovery including:
Direct Action to Recover Workers' Compensation Payments via Subrogation
There are several ways for a compensation provider to directly pursue recovery of benefits paid.
Firstly, New York’s WCL §29(2) permits the payor of compensation the right to obtain the assignment of a claimant’s tort action in cases where the claimant fails to institute his/her own action. This gives the workers’ compensation provider complete control of the third-party tort action, and the ability to recover its entire lien and legal fees back, in addition to credit rights for any monies that inure to the claimant’s benefit.
Secondly, the use of intervention in an existing claimant’s tort action to protect the statutory workers’ compensation lien when a claimant intends to abandon the action, or refuses to settle, because of the size of the workers’ compensation lien.
Thirdly, the “inviolability” of the workers’ compensation lien under New York law permits reimbursement of the workers’ compensation lien from the claimant, his/her attorney, the tortfeasor and the tortfeasor’s insurers where the third-party action is resolved but the parties fail to reimburse the lien.
Workers’ Compensation Law §29 Lien and Credit Rights
The lien law is a moving target in New York. M&F uses its knowledge of the workers’ compensation and no-fault law to creatively maximize workers’ compensation liens and the calculation of lien and credit rights when negotiating “consent to settle” agreements in third-party actions. For instance, as the law has changed it has eliminated the value to the payor of compensation to agree to the widely used practice of dividing the recovery “a third, a third, a third.” With the increase in SLU and Section 32 awards, M&F aggressively negotiates “consent to settle” agreements to maximize the third-party settlement value to the compensation provider.
Loss Transfer of Workers’ Compensation Benefits paid in lieu of No-Fault Benefits
M&F uses loss transfer arbitration provisions and other provisions of the New York Insurance Law to maximize the ability of the workers’ compensation provider to obtain through loss transfer arbitration, those portions of the medical and wage payments which are excluded from reimbursement under WCL §29(1-a). This includes participating in the arbitration process, and pursuing actions in the Supreme Court to vacate and confirm arbitration awards.
Auto and Property Damage Subrogation
In addition to the benefits subrogation programs, M&F routinely prosecutes property damage subrogation matters including, fire and water damage cases, automobile liability, products liability and cases involving negligent construction. The firm is intimately familiar with the waiver of subrogation rules in New York and routinely recovers money in files other firms turn away. M&F focuses its property damage subrogation on smaller and medium sized auto and property losses which allows it to use its flexibility and knowledge of New York law to minimize client expenses and maximize recovery.
No-Fault Loss Transfer, §5104(b) Claims and Recovery of Additional PIP benefits
New York’s Insurance Law §5101 et seq. provides insurers with strong statutory rights of recovery for No-Fault and Optional Basic Economic Loss (“OBEL”) benefits paid as a result of motor vehicle accidents occurring within New York state. Again, by concentrating on New York state, M&F has created new opportunities for no-fault providers to recover including:
Reimbursement of No-Fault Liens in Third-Party Actions and via Direct Actions
The use of Insurance Law §5104(b) to recover from a third-party tortfeasor, either by lien or independent action, benefits paid as no-fault benefits.
The use of intervention to create the right of a no-fault provider to intervene in an existing claimant’s tort action to protect the provider’s right under §5104(b) to recover from a third-party tortfeasor, benefits paid as no-fault benefits.
The use of the statutory lien and claim rights provided by §5104(b) to obtain reimbursement of the §5104(b) lien from the claimant, his/her attorney, the tortfeasor and the tortfeasor’s insurers where the third-party action is resolved but the no-fault provider’s lien created by payment of no-fault benefits is not satisfied.
Via Loss Transfer pursuant to §5105
The use of the inter-company loss transfer arbitration provisions and other provisions of the New York Insurance Law to maximize recovery of no-fault benefits through loss transfer arbitration, from the arbitration process to the commencement of actions in the Supreme Court to vacate and confirm arbitration awards.
Reimbursement of Additional Personal Injury Protection (APIP) Benefits via Direct Actions
The use of Insurance Law §5101 et seq. to recover from a third-party tortfeasor, through an independent subrogation action, benefits paid as APIP benefits.
Medicare/Medicaid ERISA Consultation
As a result of M&F’s extensive work using New York’s lien laws, the firm has developed intimate knowledge of the interaction between New York's lien rules and rights of recovery in third-party actions in New York intersect with Medicare, Medicaid and the ERISA statutes. The firm frequently consults with insurance carriers and providers on how to address federal lien claims and the impact on workers’ compensation and no-fault benefits as well as how the same impact the resolution of complex third-party actions.
Short and Long-Term Disability Payments including WCL §227 Liens
Under New York law, there are many types of disability insurance, some are statutory with statutorily protected rights of recovery, some provide for the right of subrogation, and others may be pursued under the doctrine of equitable subrogation. Having specific knowledge of New York law benefits the insurance provider in maximizing recovery, as follows:
Short-Term Disability Payments under WCL §227
Under New York’s mandatory short-term disability benefits law, WCL §227 provides the statutory right to recovery for benefits paid as a result of automobile accidents not involving employment. Through the interplay with inter-company loss transfer arbitration provisions of the Insurance Law, the short-term disability provider can maximize recovery through loss transfer arbitration.
Through the interplay with §5104(b) of the Insurance Law, the short-term disability provider can recover from “non-covered” persons under the No-Fault Law, either by lien or independent action, benefits paid as mandatory short-term disability under WCL §227.
The use of intervention to create the right of a short-term disability provider to intervene in an existing claimant’s tort action to protect the provider’s right under §5104(b) to recover from a third-party tortfeasor, benefits paid as no-fault benefits.
The use of the statutory lien and claim rights provided by §5104(b) to obtain reimbursement of the §227 lien from the claimant, his/her attorney, the tortfeasor and the tortfeasor’s insurers where the third-party action is resolved but the short-term disability provider’s lien is not reimbursed.
Subrogation of Short and Long-Term Disability Payments
The use of the plain language of the disability policy to determine whether the right of subrogation exists, or alternatively whether reimbursement may be pursued under the doctrine of equitable subrogation, from a negligent third-party tortfeasor.
The use of intervention to create the right of a disability provider to intervene in an existing claimant’s tort action to protect the provider’s right under the policy to recover, through subrogation, benefits paid as disability benefits.