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DTCI: Worker's comp liens in third-party suits

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DTCI-Das-SoniaOn May 27, 2010, the Indiana Supreme Court issued a decision that has affected the manner in which worker’s compensation liens are handled in third-party litigation. In The Travelers Indemnity Co. of America v. Jarrells, 927 N.E.2d 374 (Ind. 2010), Jarrells sustained a serious injury that arose out of and in the course of his employment with LeMaster Steel Erectors, a subcontractor on a construction site. Travelers, the employer’s worker’s compensation carrier, paid benefits in excess of $66,000 to Jarrells or on his behalf. Jarrells filed a civil suit against another subcontractor and the general contractor on the construction site for the same accident for which he received worker’s compensation benefits.

Pursuant to Indiana Code § 22-3-2-13, there was no dispute that Travelers held a statutory lien for worker’s compensation benefits paid. That statute states, in part:

Whenever an injury or death, for which compensation is payable under chapters 2 through 6 of this article shall have been sustained under circumstances creating in some other person than the employer and not in the same employ a legal liability to pay damages in respect thereto, the injured employee, or his dependents, in case of death, may commence legal proceedings against the other person to recover damages notwithstanding the employer’s or the employer’s compensation insurance carrier’s payment of or liability to pay compensation under chapters 2 through 6 of this article. In that case, however, if the action against the other person is brought by the injured employee or his dependents and judgment is obtained and paid, and accepted or settlement is made with the other person, either with or without suit, then from the amount received by the employee or dependents there shall be paid to the employer or the employer’s compensation insurance carrier, subject to its paying its pro-rata share of the reasonable and necessary costs and expenses of asserting the third party claim, the amount of compensation paid to the employee or dependents, plus the medical, surgical, hospital and nurses’ services and supplies and burial expenses paid by the employer or the employer’s compensation insurance carrier and the liability of the employer or the employer’s compensation insurance carrier to pay further compensation or other expenses shall thereupon terminate, whether or not one (1) or all of the dependents are entitled to share in the proceeds of the settlement or recovery and whether or not one (1) or all of the dependents could have maintained the action or claim for wrongful death.
(Emphasis added).

The statute further states:

If the injured employee or his dependents shall agree to receive compensation from the employer or the employer’s compensation insurance carrier or to accept from the employer or the employer’s compensation insurance carrier, by loan or otherwise, any payment on account of the compensation, or institute proceedings to recover the same, the employer or the employer’s compensation insurance carrier shall have a lien upon any settlement award, judgment or fund out of which the employee might be compensated from the third party.
(Emphasis added).

Jarrells notified Travelers of the civil action he filed. (Ind. Code § 22-3-2-13 also requires the employee or his dependents to notify the employer or the employer’s compensation insurance carrier of an action against a third party, within thirty days after the action is filed.) When Travelers learned of Jarrells’ civil suit, it notified Jarrells of the amount of its lien, but it did not intervene in Jarrells’ civil suit. (Ind. Code § 22-3-2-13 specifically grants the employer, within ninety days after receipt of notice of suit from the employee or his dependents, the right to join in the action upon motion to the court so that all orders of the court after hearing and judgment shall be made for his protection. Interestingly, although Ind. Code § 22-3-2-13 specifically mentions rights of the employer’s compensation insurance carrier in all other respects, the statute is silent as to whether the right to join the third-party action is also available to the employer’s compensation insurance carrier.) At trial, Jarrells presented evidence of the worker’s compensation benefits paid and testified that if he recovered in the lawsuit, he might have to repay Travelers for payments it made.

In Jarrells, the trial court gave the following jury instruction, which closely mirrored the pattern jury instructions:

If you find that Jerry Jarrells is entitled to recover, you shall consider evidence of payment made by some collateral source to compensate Jarrells for damages resulting from the accident in question. In determining the amount of Jarrells’ damages, you must consider the following type of collateral source payments:

Payments for worker’s compensation

In determining the amount received by Jarrells from collateral sources, you may consider any amount Jarrells is required to repay to a collateral course and the cost to Jarrells of collateral benefits received. Jarrells may not recover more than once for any item of loss sustained.

(Emphasis added). The final instruction on collateral-source payments did not explicitly and unmistakably state that any award will be deemed to include a set-off for worker’s compensation payments, such that Jarrells need not make a separate repayment of that benefit to Travelers from his award.

Following trial, a jury returned a verdict of $925,000 for Jarrells, which was reduced to $508,750 for comparative fault. In Jarrells, the jury did not specifically indicate whether its award included the amount Jarrells might be required to repay to Travelers.

After Jarrells notified Travelers of the judgment, Travelers demanded repayment of a reduced amount of worker’s compensation benefits paid (reduced to account for comparative fault), less a pro rata share of Jarrells’ attorneys’ fee. Jarrells refused to pay Travelers, claiming that the jury had already reduced the award by the amount of the worker’s compensation benefits and that the award should not be further reduced after judgment. Travelers argued that the jury had fixed damages on the assumption that Jarrells would have to repay Travelers out of the proceeds of the judgment.

Travelers then sought relief from the trial court. The trial court determined that requiring Jarrells to repay Travelers for worker’s compensation benefits paid would impose a double set-off on the recovery because the jury had already deducted the worker’s compensation benefits from the gross award. Travelers appealed, and the court of appeals reversed with instructions to enter judgment for Travelers and to determine the value of the lien. The employee then appealed that decision to the Indiana Supreme Court.

In its decision, the Indiana Supreme Court addressed the interplay of the collateral source payment statute (Ind. Code § 34-44-1-1) and the worker’s compensation lien statute (Ind. Code § 22-3-2-13). The collateral source rule places limitations on the type of evidence a plaintiff in a personal injury action may present concerning payments received from sources other than the defendant. The purpose of the rule is to allow the fact finder to make an accurate assessment of the plaintiff’s “pecuniary loss” and to prevent a party from recovering more than once for each item of loss sustained. Id. at 376. At the same time, the collateral source payment rule allows presentation of evidence of worker’s compensation benefits “to establish proof of money that the plaintiff is required to repay.” Id. at 376-77. Repayment, as Travelers’ argued, was required by Indiana Code § 22-3-2-13. Considering the purpose of the collateral source payment rule, the Supreme Court found that “[i]f the jury is to consider evidence of collateral course payments such as worker’s compensation that the plaintiff is required to repay, the only plausible interpretation of these provisions is that the jury should include the amount of any collateral source payments that the plaintiff is required to repay in its award to the plaintiff.” Id. at 377 (emphasis added). Likewise, if there is no obligation to repay, the jury should not include the amount of collateral course payment in its award. Thus, it would appear that the Supreme Court agreed with the decision reached by the court of appeals.

However, the Indiana Supreme Court affirmed the original decision of the trial court in favor of Jarrells and against Travelers. In doing so, the court acknowledged that it was not apparent from the jury award whether the jury intended for Travelers to be repaid or if the jury reduced the total award by the amount that Travelers had paid in benefits, so that Jarrells would not recover twice. The court concluded that the trial court was in the best position to determine the intent of the jury. Further, there was no evidence on the amount Jarrells would be required to repay to Travelers, and there was no instruction as to the rules governing the calculation. Thus, the court found that a jury could not have determined how much to add to the judgment if it wanted to provide for Jarrells’ repayment to Travelers as opposed to “considering” it by eliminating from its award the damages already covered by worker’s compensation benefits. Id. at 379.

In so finding, the Indiana Supreme Court also held that the pattern jury instruction used in Jarrells should not be used in future trials. Id. at 377. One way clarification can be obtained is to add language that would specifically instruct the jury to include in the total damages awarded those collateral source payments subject to repayment obligations, such as worker’s compensation. Other options are also available to help eliminate the ambiguity in the current instruction. Revised jury instructions should offer the jury no opportunity to exclude from its award amounts that are subject to a statutory repayment obligation. To do so would allow the jury, rather than the court, to decide which law applies. If jurors could decide whether a worker’s compensation carrier should receive what is a statutory right to repayment, the result could potentially have a punitive effect on carriers providing benefits to injured workers, if the carriers are infrequently or inconsistently awarded reimbursement. Another unwanted result if the carriers are infrequently or inconsistently awarded reimbursement of benefits paid may be that fewer carriers will offer compensation insurance or that carriers will increase compensation insurance premiums to account for the risk that repayment of a statutory lien may be not granted.

A lesson to be learned from Jarrells for worker’s compensation defense attorneys and worker’s compensation insurance carriers is that it may not be enough merely to notify counsel pursuing a third-party claim of the right to workers’ compensation benefit reimbursement out of any recovery. Insurers may wish to intervene in civil suits (to the extent such right exists under Indiana Code § 22-3-2-13), particularly where the lien is sizeable, to ensure that the lienholder’s interests are represented or protected in civil proceedings, before a judgment is rendered.

The Civil Jury Instructions Committee has revised all jury instructions. Practitioners should look for the revised pattern collateral source instruction (and other instructions) to be published this fall and should analyze how the new instruction affects worker’s compensation benefit reimbursement.•

Ms. Das is a partner at Lewis Wagner, LLP, in Indianapolis and chairs the DTCI Worker’s Compensation Section. The opinions expressed in this article are those of the author.

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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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