Disclaimer: This article is for informational purposes only and does not constitute legal advice.
Detailed Answer
When you pursue a personal injury recovery for injuries caused by a third party while on the job in West Virginia, you must consider your employer’s right to a workers’ compensation lien. Under West Virginia Code section 23-2C-3, the employer or its insurer can recover from any third-party settlement or judgment the amount of compensation it paid you.
Here is how the lien process works:
- Payment of Benefits: You receive workers’ compensation benefits for medical bills and lost wages.
- Third-Party Recovery: You file a lawsuit or claim against the negligent party and secure a settlement or court award.
- Determining the Lien: The workers’ compensation carrier notifies you of the exact lien amount, which equals the benefits paid. See West Virginia Code § 23-2C-3.
- Allocation of Attorney Fees: Courts often allocate attorney fees and litigation costs proportionally between the workers’ compensation lien and your net recovery. This means the carrier’s reimbursement may include a share of fees tied to its portion.
- Net Recovery: The carrier deducts its lien plus its share of fees and costs. You receive the remainder of the settlement or judgment.
For example, imagine you recover $100,000 from a third party and your carrier paid $20,000 in benefits. With a one-third attorney fee agreement, you owe $33,333 in fees total. Proportionally, the carrier’s share of fees is $6,667, so it recovers $26,667. You receive the remaining $73,333.
If you dispute the lien amount or allocation, you can petition the circuit court to adjust the lien under West Virginia Code sections 23-2C-8 and 23-2C-9. Courts will review the fairness of any reduction or credit.
Helpful Hints
- Review the carrier’s lien notice promptly and verify all benefit payments.
- Discuss lien allocation with your attorney before settlement negotiations.
- Maintain detailed records of medical expenses, wage losses, and comp payments.
- Consider mediation or court approval to resolve lien disputes efficiently.
- Work with a West Virginia personal injury attorney experienced in workers’ compensation subrogation.