After being sued, the employer cut a deal with its insurer and obtained a new workers compensation policy. The insurance company agreed to retroactively cover the workers compensation benefits of the injured employee. With this retroactive coverage the employer counted on us dropping the lawsuit. Prevailing law at the time was that an injured employee could not have both workers compensation benefits and a tort suit against the employer. Once workers compensation benefits are received, the employee is treated as making an election forgoing the right to sue the employer. However, I refused to drop the lawsuit and argued this election was inapplicable to this case. I argued to the court there are uninsured, injured employees out there who are either unaware of their rights or do not have the courage to bring a lawsuit themselves. We needed the Court to make a stand. If the Court dismissed our lawsuit, there would be no deterrent to employers who choose to let their policies lapse leaving their employees unprotected, only to then get back dated coverage, if, and when, an injured employee ever files a lawsuit. The Court agreed and denied the employer’s motion to dismiss our lawsuit. We then filed a motion, which the Court granted, to freeze $350,000.00 of the employer’s assets.
After mediation, the employer agreed to pay $500,000 to the injured employee. The workers compensation insurer who made the retroactive payment agreed to take no lien against this recovery and agreed to continue to pay for all future medical expenses.
– Steven M. Ballin, Esq.