Whitt & Del Bueno, Attorneys at Law

Leaders in defending workers' compensation claims.


Lien on Me

By Mike Del Bueno

Occasionally, certain cases cause shockwaves to reverberate through the legal community. One of these shockwaves went through the Virginia workers’ compensation legal community in 2003. That was the year of the Yellow Freight case. The Yellow Freight case went all the way to the Virginia Supreme Court. They determined that an employer who filed a third party petition case to recover workers’ compensation benefits paid to its injured employee after that employee and the third party settled the employee’s premises and products liability claims, was too late and not entitled to recovery.

Before the Yellow Freight opinion, the applicable law regarding the recovery of workers’ compensation benefits in third party cases did not specifically state that employers had a “lien” for workers’ compensation benefits paid – the law simply stated that the workers’ compensation claim operated as an “assignment” to the employer of any right to recover damages that the injured employee might receive in a third party case. However, in 2004, the Virginia General Assembly amended the law to specifically give employers a “lien” in third party cases for workers’ compensation benefits paid.

Even though the Virginia General Assembly changed the applicable law after Yellow Freight, it is still a good idea to specifically file as soon as possible with the court where the third party case is pending a petition that formally notifies the court and all involved parties of the lien and its amount. Simply writing a letter to the injured employee’s attorney in the third party case, without filing the formal petition with the court, may not be enough to protect the lien.

Filing a petition with the court is the most thorough way to protect the workers’ compensation lien, whether the injured employee makes a recovery in the third party case by way of settlement, or judge/jury verdict if the case goes to trial. We have filed numerous such petitions in the past, and have protected many workers’ compensation liens in doing so. If you need assistance in protecting a workers’ compensation lien in a third party case, we are here to help.