One of the notable exceptions, as outlined in F.S. 440.092(2), is the Coming and Going Rule. This rule stipulates that an injury that occurs while the worker is coming from or going to work is not an injury that “arises out of employment or in the course of employment.” The statute indicates this is true even when employer provides the transportation, so long as such transportation was available for the exclusive personal use by employee – unless the employee was engaged in some special mission or error for the employer. This doesn’t apply to law enforcement officers traveling in marked cruisers, unless they have made some distinct deviation for a non-essential, personal errand (unless the collective bargaining agreement allows for such deviations, in which case such an injury would be covered by workers’ compensation).

This coming-and-going rule is pretty well established across jurisdictions. Still, these matters continue to arise in courts across the country. Recently, Florida’s 1st District Court of Appeal weighed one such case, Quinn v. CP Franchising, in which a worker was injured in a parking lot fall at work. 

According to court records, plaintiff tripped and fell in a parking lot that was next to her work. Photos later reviewed by the Judge of Compensation Claims showed that there was a separation between the asphalt of the parking lot and the concrete curb. These images reveal show this groove is present throughout the lot wherever the asphalt and concrete meet.

Based on this observation, the judge concluded there was no special danger that led to the accident. The question then was whether employer had a certain degree of control of the area in order for the parking lot to be considered part of the employer’s premises or whether it was an area was used by the employer for work-related purposes. Evidence revealed the parking lot wasn’t leased by the employer. The employer never assigned workers their own parking spaces in the lot. However, pursuant to its lease agreement, the company did receive three dozen unassigned parking spaces that workers could use, but they were not granted exclusive access. The company paid a fee to the landlord for maintenance of the common areas of the property and plaintiff didn’t present any evidence the employer had any control over the parking lot maintenance or even how the maintenance fee was applied.

Because the parking lot was open to the public and was not used by employees in a really different way and the employer didn’t use the lot for special purpose or have control over it, there was no exception to the general coming-and-going rule, and thus the worker was not entitled to collect workers’ compensation benefits for her injuries.

Although this was a disappointing outcome for this plaintiff, it’s important to consult with an experienced injury lawyer in Miami if you have suffered a work-related injury because the facts of each case vary and could result in a different result.

If you have been injured in a work accident in Miami, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

Quinn v. CP Franchising, Oct. 13, 2016, Florida’s 1st District Court of Appeal

More Blog Entries:

Police: Florida Drunk Driver Kills Tow Truck Driver, Oct. 18, 2016, Miami Injury Attorney Blog

This is the third in a series of articles dealing with lien resolution in personal injury cases.

Welfare Liens

In New Jersey, there is a lien against real and personal property of a person who has been assisted by or received support from any municipality or county. This is true whether a person has been in a county facility or at home.1

Mental Health Liens

In New Jersey. a person with a mental illness who is over age 18 and is being treated in a state psychiatric hospital shall be liable for the full cost of his treatment. maintenance. and all necessary related expenses.2 Although this statute does include a repayment obligation. it does not appear to impose a lien. particularly with respect to personal injury claims.

Traumatic Brain Injury Fund

Tbe New Jersey Traumatic Brain Injury Fund is the payer of last resort for costs of post-acute care. services. and financial assistance provided to survivors of traumatic brain injury. particularly with respect to rehabilitative and long-term care needs not covered by private insurance or public benefits programs. 3 The fund provides up Lo $15,000 a year in benefits, not to exceed a total expenditure of $100,000 per eligible person. The fund has a first-priority claim to any monies received by the person with traumatic brain injury as the result of a settlement or other payment made in connection with the traumatic brain injury.4

Catastrophic Illness in Children Relief Fund

As its name suggests, the Catastrophic Illness in Children Relief Fund is a New Jersey program that provides assistance to children and their families whose medical expenses extend beyond tbe families’ available resources. 5 In the case of an illness or condition for which the family. after receiving fund assistance. recovers damages for the child’s medical expenses pursuant to a settlement or judgment in a legal action, the family is required to reimburse the fund for the amount of assistance received. or for the portion of assistance covered by the amount of the damages. subject to a credit for the expenses of obtaining the recovery.6 The Fund administrators have the authority to negotiate settlement of its reimbursement claims.; Victims of Crime Compensation In New Jersey. certain victims of crime are entitled to compensation under the Criminal Injuries Compensation Act of 19 71. 8 The Act covers individuals injured or killed by any act or omission of any other person, which is within the description of offenses listed within the Act.9 The state has a right of subrogation against the person responsible for personal injury or death. and a lien after entry of judgment.10 State Worlrnrs’ Compensation Claims \•\/hen there is a state Workers’ Compensation (WC) claim and also a third party liability case. and the third-party liability case settles, there is a WC lien against the third-party liability proceeds.11  Frequently. the WC lien is negotiable. because the WC carrier may be motivated to get the plaintiff off its books.

If the amount recovered from the third party is greater than the WC lien, no attorneys’ fees or costs are permitted. If the sum recovered against the third party is less than the WC lien, there is a pro rata reduction for attorneys· fees and costs.12  Expenses shall not exceed $ 750 and attorneys’ fees shall not exceed 33-1/ 3 %. 13

Federal Employee Compensation Act The Federal Employee Compensation Act (FECA) is the federal equivalent of the state Workers’ Compensation law. 14  The United States has a statutory lien for recovery against the third party liability case.15  The lien attaches to the entire recovery.

Hospital Liens

Generally, every hospital, nursing home, licensed physician or dentist may assert a lien for services rendered by way of treatment, care, or maintenance to any person who has sustained personal injuries in an accident as a result of negligence or alleged negligence of any other person.16 The lien attaches to the proceeds of any settlement, award. or judgment an injured person may obtain from a third party as a result of the injuries for which services were provided.17  Hospital liens may be difficult to negotiate: however, such liens are subject to strict filing and notice requirements 18 and failure to comply with the statute is fatal to the lien claim.

Child Support

New Jersey imposes liens for child support against any proceeds recovered from a personal injury settlement.19  The lien shall have priority over all other levies and garnishments against the net proceeds of any settlement, judgment, or award, unless otherwise provided by the Superior Court, Chancery Division, Family Part. The only exception is unpaid income taxes.

Division of Developmental Disabilities (DDD)

The Division of Developmental Disabilities asserts liens for many of its programs. Before settling a case, it is important to check with DOD if plaintiff has been receiving those services.

1 N.J.S.A. 4:4-91.

2 N.J.S.A. 30:4-60(c)(1).

3 N.J.S.A. 30:6F-1 et seq.

4 N.J.S.A. 30:6F-6(b).

5 N.J.S.A. 26:2-148 et seq.

6 N.J.S.A. 26:2-154(b).

7 N.J.S.A. 26:2-154.1.

8 N.J.S.A. 52:4B-1.

9 N.J.S.A. 52:4B-10.

10 N.J.S.A. 52:4B-20.

11 N.J.S.A. 34:15-40.

12 N.J.S.A. 34:15-40(b) and (c)

13 N.J.S.A. 34:15-40(e)

14 5 U.S.C. §8131 and 8132:20 C.F.R. § 10.705-719.

15 5 U.S.C. §8132.

16 N.J.S.A. 2A:44-36.

17 N.J.S.A. 2A:44-37.

18 N.J.S.A. 2A:44-41.

17 N.J.S.A. 2A:17-56.23(b).

by Thomas D. Begley, Jr., CELA

Types of Liens

Prior to making distribution in the settlement of a class action or mass tort lawsuit, a number of lien issues may need to be addressed, depending on the nature of the case, the elements of the recovery, and the population of claimants. These issues may include reimbursement claims asserted by Medicaid, Medicare, Medicare Advantage and Prescription Drug Plans, ERISA Plans, Federal Employee Health Benefits, Federal Medical Care Recovery Act, Veterans Administration and TRICARE Claims, Welfare Liens, Mental Health Liens, Traumatic Brain Injury Fund, Catastrophic Illness and Children’s Relief Fund, Victims of Crime Compensation, State Worker’s Compensation Claims, Federal Employee Compensation Act, Hospital Liens, Child Support and Division of Disabilities (DDD).

Subrogation/Reimbursement

It is important to understand the differences between these two related concepts.

• Subrogation. Subrogation is the substitution of one party (an insurer) for another party (the insured) in the assertion of rights against a third party. It allows the insurer to assert the rights and claims of the insured. Subrogation rights may arise from contract (“conventional” subrogation), from legal principle or doctrine (“legal” or “equitable” subrogation), or from legislation (“statutory” subrogation).
• Reimbursement. Reimbursement allows the insurer to seek repayment from the insured when the insured receives funds from another party. Reimbursement rights arise from contract, with their scope and enforceability determined by the contract’s terms, subject to applicable limiting law.

Derivative Claims

Liens are generally enforceable against the settlement of the injured party on whose behalf benefits are paid, but it is unlikely they are enforceable against proceeds of derivative claims of others arising from the incident.[1] For example, wrongful death claims would not generally be subject to liens because they are property of persons other than the decedent; in contrast, a survival claim, as property of a decedent’s estate, may be subject to a lien.[2] Similarly, allocation of loss of consortium claims to those who do not have responsibility for medical bills, such as a spouse or child of an injured party, may in some circumstances serve to reduce the amount attachable by a health care lien.

[1] Admin. Comm. of Walmart Stores, Inc. v. Gamboa, 479 F.3d. 538 (8th Cir. 2007).

[2] Bradley v. Sebelius, 621 F.3d 1330 (11th Cir. 2010).