Liability Defendant Does Not Receive Offset From Waiver of Florida Workers’ Compensation Lien

People hurt on the job can often bring damage claims against their employer under workers’ compensation and third parties responsible for causing the accident. Normally, workers’ compensation medical and lost wage benefits are provided to the injured worker before the third party case is resolved.

Florida Statute 768.76 provides that amounts owed by negligent third parties are offset by benefits injured persons receive from collateral sources. However, the offset does not apply to benefits that must be repaid. The right a source has to be repaid is known as subrogation.

Workers compensation insurance carriers have subrogation rights pursuant to Florida Statute 440.39.

Not infrequently, WC carriers agree to waive the lien as part of workers’ compensation settlements. When the carrier waives its lien, meaning that it does not have to be repaid for benefits paid, does the 768.76 offset apply? No.

So says Bruner v. Caterpillar, Inc., 627 So. 2d 46 (Fla. 1st DCA 1993).

The underpinning logic for not allowing the offset is that the workers’ compensation lump sum settlement is less because the lien is waived. In other words, the claimant has paid in the form of a lesser settlement to obtain the waiver.

To learn the formula for satisfying the workers’ compensation lien, link to this blog: The Manfredo Formula for Satisfying Florida Workers’ Compensation Liens From Personal Injury Proceeds

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Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.