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How Clawback Affects Workers’ Compensation and Personal Injury Claims


If you have healthcare insurance, it is the first line of financial defense that you can use in a personal injury situation. For example, if you were hit by a drunk driver while crossing the street, your health insurance steps in to cover your medical costs first, starting at day one, even if the collision was clearly the fault of someone else. Only later, when you win your settlement or lawsuit verdict, which can take years, do you get compensated by the at-fault party. The same is true of a workers’ compensation claim in which your employer acted egregiously, and you won a personal injury lawsuit against said employer—your workers’ compensation policy is applied first to cover your medical expenses. Again, years later, you get compensated financially by your employer, and everything seems great because you were, in a way, compensated twice. This is where clawback comes into play; the insurance company that originally footed the hospital and doctor’s bills, either in a personal injury claim due to a traffic accident or work injury, wants some of your lawsuit compensation, and depending on the circumstances, they may take nearly everything. Medicare works in the same fashion, and there is even less negotiating room. As such, you need an attorney to mitigate claw back.

How Clawback Works

Clawback (also called a medical insurance lien as defined by JDSURPA) can be confusing, especially when you have to learn about so many other legal terms and bizarre doctrines. Clawback works like the following example:

  1. Your total medical costs amount to $100,000. To keep things simple for the purpose of this example, we are assuming that your insurance company covers 100 percent of these costs (which does not happen in reality).
  2. 18 months after the date of the injury, you are awarded $150,000 in medical damages, pain and suffering, lost wages, and other damages.
  3. Your own health insurance company “claws back” a percentage, or all of, the $100,000 in medical expenses they covered. This leaves you with just $50,000—not much considering how serious your injuries were.

Moreover, your attorney has to be compensated for his or her work. So, of the original $150,000 settlement, one third (for example) goes to your attorney if the case is settled out of court, leaving you with roughly $100,000. As such, your insurance company stands to claw back everything you earned from the personal injury claim. This does not seem fair, especially considering the fact that you paid expensive premiums every month for this insurance, and now the insurance company wants even more from you.

Our Orlando Personal Injury Attorneys Can Help Today

By pouring through the policy and negotiating with your insurance company, an attorney can help you maximize the compensation you receive, and help you to keep as much, or all, of the settlement or verdict. To get started with our experienced Orlando personal injury attorneys today, call the Payer Law, LLC at 407-307-2979 for a free case evaluation.



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