How do workers’ compensation liens affect the final amount received in a personal injury recovery in Virginia?

The information on this site is for general informational purposes only, may be outdated, and is not legal advice; do not rely on it without consulting your own attorney. See full disclaimer.

FAQ: How do workers’ compensation liens affect the final amount received in a personal injury recovery?

Disclaimer: This article is for informational purposes only and does not constitute legal advice. Always consult a qualified attorney for guidance on your specific situation.

Detailed Answer

When an employee suffers a workplace injury, the employer’s workers’ compensation insurer pays benefits for medical treatment and lost wages. Under Virginia law, the insurer has a subrogation right—often called a lien—against any personal injury recovery that compensates for the same injury. This right appears in Virginia Code § 65.2-309 (link).

The lien works as follows:

  1. Gross Recovery Allocation: When you settle or win a verdict, you typically allocate the total recovery among medical expenses, lost wages, and pain & suffering.
  2. Attorney’s Fees and Costs: Virginia law requires the insurer’s reimbursement to be reduced by its pro rata share of attorney’s fees and litigation costs. For example, if 50% of your recovery covers medical bills and your attorney’s fee is 30%, the insurer’s share of fees equals 50% of that 30%.
  3. Net Lien Amount: The insurer’s lien equals the total benefits paid for medical treatment and lost wages, minus its share of fees and costs. You keep the remainder.

Example (hypothetical): You recover $100,000, allocated as $20,000 for medical bills, $30,000 for lost wages, and $50,000 for pain & suffering. Your attorney’s fee is 33.3% ($33,300); court costs total $2,000. The insurer’s benefits paid total $50,000. Its share of fees equals 50% × $33,300 = $16,650. Its share of costs equals 50% × $2,000 = $1,000. The net lien is $50,000 – $16,650 – $1,000 = $32,350. Your final recovery: $100,000 – $33,300 – $2,000 – $32,350 = $32,350.

Helpful Hints

  • Notify the workers’ compensation insurer promptly about any third-party claim.
  • Allocate your settlement clearly among medical bills, lost wages, and non-economic damages.
  • Request a written, itemized lien statement from the insurer early in the process.
  • Review Virginia Code § 65.2-309 to understand subrogation rights and fee reductions.
  • Work with an attorney experienced in both workers’ comp and personal injury to maximize your net recovery.
  • Negotiate lien amounts when appropriate to ensure fair reduction for fees and costs.

The information on this site is for general informational purposes only, may be outdated, and is not legal advice; do not rely on it without consulting your own attorney. See full disclaimer.