We are pleased to report a recent victory for our client inDEPARTMENT OF SOCIAL SERVICES/COMMONWEALTH OF VIRGINIA v. JOHNICAL M. OWENS, Record No. 0377-13-11, COURT OF APPEALS OF VIRGINIA, AUGUST 6, 2013. Very briefly, the law is that when one is injured on the job, and those injuries are also caused by the negligence of someone else—like in a car accident — you must take into account the interests of your employer and the workers compensation carrier. In other words, you may not settle your injury case with the person who hit you, and his or her insurance company, without receiving permission and giving notice to the workers compensation insurance company who has paid your medical bills and paid you compensation for your time off. The idea behind this law is to prevent you from obtaining a double recovery from both the liability insurance company and the workers’ compensation insurance company. You must give the workers’ compensation insurance company a chance to get at least a portion of their money back. This is called the workers compensation statutory lien on your recovery.
Ms. Owens was in two separate car accidents, both while she was on the job for the Commonwealth of Virginia. We represented her for the first accident. On the second accident, Ms. Owens represented herself, and reached a small settlement with the car insurance company on her own. Unfortunately, she did not make anyone, including her workers compensation insurance company— or us— aware that she has reached that settlement or been in a second car accident.
As we moved forward with her case in the first accident, it came to our attention that she had been in this second accident. When deposing her main treating physician to obtain evidence for use at trial, it became clear that the doctor would only testify that Ms. Owens’ injuries before the second accident were related to the first accident. The doctor was of the opinion that any treatment after the second accident was not related to the first accident at all.
Despite this evidence, and despite making that evidence available to the workers compensation carrier, the comp carrier was adamant that they wanted reimbursement on the entirety of the money they had paid, on both accidents, from the first accident. We refused to pay that money to them.
We figured up what the comp carrier was entitled to under the law and held that amount back in escrow from the settlement.
Afterwards, the comp carrier, through the Attorney General’s office, filed an action against Ms. Owens in the Workers Compensation Commission, alleging she had settled the second accident without consulting or giving notice to the comp carrier, and accordingly, the carrier should be entitled to a credit for all monies paid that were related to the second accident. Since we did not represent Ms. Owens on the second accident, we did not become involved. The carrier won their credit. The credit merely means that if Ms. Owens is ever injured again at work, that money must be paid back to the comp carrier out of any settlement or other money Ms. Owens may be entitled to.
Once we received word that that carrier obtained their money on the second accident, we went ahead and released the funds to cover their workers comp lien on the first accident.
Did this satisfy the comp carrier? Of course not. The Virginia Attorney General’s office then filed another action against Ms. Owens for the first accident, claiming the Commonwealth should be reimbursed and receive more credit, not only for treatment for the first accident, but for additional treatment after the second accident as well, even though they had already had an opportunity to recover those funds.
This time we did get involved, and we successfully convinced the Deputy Commissioner, the Full Commission and the Virginia Court of Appeals that this attempt by the comp carrier to claim two chunks of credit was patently unfair to Ms. Owens. The comp carrier already knew that the treating doctor wouldn’t say that treatment after the second accident was related to the first. We had let the comp carrier know that. Despite this, the comp carrier had tried to ‘take another bite at the apple’ and get more money for treatment that the doctor had clearly said was not related.
The Commission didn’t buy it and said the employer and the carrier were not entitled to do that. The Commission ruled that we had already paid the comp carrier exactly what they were due and they were not entitled to a penny more. They denied any further credit to the employer or comp carrier, which, in this case, was the Commonwealth of Virginia.