Subrogation/Loss Transfer

lien and Loss Transfer recoveries and third-party credit rights

Led by our managing partner, F. Daniel Bowers, with 30 years of experience in this field, our Subrogation and Loss Transfer Department specializes in handling third-party action consent letters, lien resolutions, global settlements, complex Loss Transfer claims, and arbitration hearings. With three decades of expertise, we provide strategic counsel to our clients on maximizing lien recoveries and credit rights while navigating the intricate landscape of workers’ compensation claims and third-party actions to achieve favorable outcomes for our clients.

Subrogration/ Loss Transfer

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How We Can Help

Our full-service law firm has the ability to provide expert legal advice concerning the complicated overlap between lien recoveries, credit rights, Burns or Kelly obligations, Loss Transfer,  and Medicare Set-Aside/Conditional Payment implications.

Do not miss out on maximizing your LIEN RECOVERIES AND CREDIT RIGHTS!  Make sure that you understand your full lien and credit rights when considering the possibility of waiving or reducing your lien in exchange for a Section 32 Settlement Agreement.

Workers’ compensation claims arising from motor vehicle accidents present complex legal issues for claims handlers. Many of these claims involve a third-party action filed by the claimant against the negligent driver involved in the accident. Most claims professionals know that when a MVA involves two “covered persons” occurring in New York State, there is no workers’ compensation lien for payments made in lieu of “first party benefits” as defined by the New York No-Fault Law. The workers’ compensation carrier or self-insured employer has lien and offset/credit rights only for payments deemed outside the definition of “first party benefits”. Payments outside of “first party benefits” include: 1)combined payments of medical, indemnity and no-fault in excess of $50,000.00; 2) indemnity payments in excess of $2000 per month; or 3) indemnity payments for lost time occurring after three years from the MVA.

There are many situations, however, where you have lien and credit rights before you hit the $50,000 threshold. Don’t be fooled by plaintiff’s attorneys that tell you that you have no lien because you haven’t paid $50,000 yet! If you have made indemnity payments in excess of $2000 per month or paid lost wages for lost time that occurred more than three years after the date of injury, you have lien rights even if you have not paid $50,000 in benefits.

Pursuant to section 5105 of the New York Insurance Law entitled Intercompany Arbitration, otherwise known as Loss Transfer, the carrier or SIE can recover payments made in lieu of first party benefits against the automobile carrier for the negligent party. The carrier or SIE do not have a lien  against the third-party recovery for those payments, but may be able to obtain those benefits from the automobile carrier for the negligent party if one of the vehicles involved in the accident weighs  6500 pounds unloaded or is a vehicle for hire to transport people or property. Loss Transfer cases need to be handled aggressively just like workers’ compensation claims and arbitration needs to be pursued when voluntary payment cannot be secured.

Our Firm has the ability to review individual files or groups of motor vehicle accident cases for clients to determine whether they have missed out on any recoveries. All that we need are the WCB Case Nos, payment ledgers and the police report/accident report to start the project. We handle these projects on a contingency basis so that there is no out-of-pocket cost to our clients. If we determine that Loss Transfer applies, the file or files are referred to our office to pursue Loss Transfer recovery. Our Firm only gets paid if we obtain a recovery. Please contact us if you are interested in running a Loss Transfer project. We have conducted several successful projects on behalf of our clients including self-insured employers, carriers, school districts and municipalities.

Fee Arrangement

please contact us directly about our different fee arrangements including hourly billing, flat fee billing, contingency and hybrid billing models

  • What Is Subrogation?

    When an employee is injured due to the negligence of a third party, the employer or the insurer providing benefits is deemed to have a lien against the third-party action recovery. The lien covers indemnity and medical benefits paid up to the date of the third-party action recovery. In addition, the employer or the insurer is entitled to take a credit, also known as a "holiday", against future indemnity or medical benefits for the net settlement proceeds received by the injured employee. Once the credit is exhausted the claimant is entitled to further compensation benefits otherwise known as "deficiency compensation". The employer or insurer are obligated to contribute their proportionate share to the cost of the third-party action litigation pursuant to Kelly or Burns depending upon the status of the workers’ compensation claim.

  • Elevating Workers' Compensation Strategy

    At Hamberger & Weiss LLP, we understand the complex interplay between third-party actions and workers’ compensation claims. This understanding allows us to provide expert legal advice and strategy on how to maximize our lien recoveries, credit rights and reduce our client’s exposure on a claim while attempting to effectively close the case on a final and conclusive basis. We always look at the possibility of a global settlement that closes the workers’ compensation claim, but only where it makes financial sense to the client. Over the years, we have provided seminars and training presentations to workers’ compensation and subrogation adjusters to ensure that our clients are able to recognize and effectively handle subrogation opportunities. We are the authors of the "Third-Party and Other Related Actions” section of the New York Workers’ Compensation Handbook published by LEXIS-NEXIS.

  • Why is Subrogation Important?

    In the workers’ compensation context, the basic concept underlying third-party actions is one of fairness--that in the end, the ultimate loss from wrongdoing should fall on the wrongdoer. Subrogation is crucial as it prevents a double recovery situation whereby an injured employee receives workers’ compensation benefits from the employer and from a third party. The avoidance of a double recovery helps to maintain the fairness and integrity of the workers’ compensation system.

Subrogration/ Loss Transfer

Understanding Subrogation in Workers' Compensation

30 Years of Expertise with F. Daniel Bowers and our Subrogation/Loss Transfer Team. 

Hamberger & Weiss LLP

Dedicated Subrogation Team

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