Medicare & Workers’ Comp. Liens (Continued from page 18)
copies of bills and records, and line up an adjuster to testify at trial re- garding the lien. It is permissible to introduce evidence regarding the amount of the lien and to have an accompanying instruction regard- ing the repayment obligation. See Kilgore v. Collins, 233 Md. 147 (1963).
5. Strike a deal early, particularly if there will be limited funds (insur- ance), or if liability is weak. For example, if the third-party case is not a “sure” thing, negotiate a capped lien and a suspension of the “holiday” against future benefits in the event the recovery is below a certain dollar amount.
6. Be mindful of the potential conflict. To some extent, you are working for the workers’ compensation car- rier, as they have an interest in the recovery and often they do not en- gage their own counsel. It is wise to avoid a situation where you get paid, the carrier gets reimbursed
and the client gets little or noth- ing, or faces a prolonged benefit holiday. Assessing and addressing these possibilities with the client early can avert problems later in the case.
7. Encourage the workers’ compensa- tion representative (whether it is a subrogation specialist or adjuster), to be involved in the case. Make them aware of liability issues, cov- erage problems, damage concerns, etc. Seek their cooperation to avoid creating damaging testimony. For example, their Defense Medical Ex- amination choices and vocational people can provide damaging or helpful evidence. Attempt to fos- ter some understanding that their likelihood of being repaid increases if unfavorable evidence is avoided or minimized.
8. Keep the adjuster/attorney advised of the progress of the case and re- quest their attendance at mediation or settlement conferences.
It is a
lot harder for them to resist reduc- ing their lien if a settlement judge asks.
9. Be creative. Obviously there are situations where the third-party re- covery will so far eclipse the lien that there is plenty of money for all. More often, though, there is a balancing act which requires fore- sight and “out of the box” thinking. You must assess the need for future benefits versus the “cash now” re- sult. Look ahead at your client’s situation to determine if he or she may need future surgery, rehabili- tation or vocational assistance. If yes, strive to preserve their future benefits. If not, a reduction of the lien in exchange for a release of the workers’ compensation case may be in their best interests. On this topic, every case is different and must be approached with a full rec- ognition of the possible outcomes.
10. Involve the client in the discussions and put all such advice in writing. This mapped out scenario can be tough for counsel and the court to understand. Avoid second-guess- ing or worse, later on, by setting
(Continued on page 22)
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