Jeffrey P. Gale, P.A. // Difference Between Workers’ Compensation Lien and Medicare Lien in Death Cases

A lien is a claim held by a party against the settlement or judgment in a personal injury or death case for reimbursement of damages it has paid in the case. This blog will discuss two types of liens commonly arising in death cases, the Medicare lien and the workers’ compensation lien.

Medicare pays medical expenses while both medical and indemnity (money) benefits are paid by the employer and its insurance carrier in Florida workers’ compensation cases. Each type is often paid in association with cases where the victim ends up dying.

42 CFR sec. 411.24 sets forth Medicare’s lien rights. Section 440.39, Florida Statutes covers the employer/carrier’s lien rights in workers’ compensation cases.

Section 786.21 of Florida’s Wrongful Death Act defines the type of benefits available in civil law wrongful death cases. Section 440.16 does this in the context of workers’ compensation cases. In some instances, a recovery under both laws is available for the same accident.

Under the Wrongful Death Act, the decedent’s estate and his or her survivors, as defined in section 768.18, may be compensated for various forms of damages. The estate’s recovery can be for non-economic damages such as medical expenses and loss of net accumulations, while survivors may recover non-economic damages such as loss of companionship, loss of protection, and mental pain and suffering.

The workers’ compensation death benefit available under section 440.16 is limited to $150,000 payable to the surviving spouse and dependent children in increments.

Medicare’s lien attachment is limited to the settlement or judgment proceeds recovered by the estate. It is not entitled to recover from the non-economic damages received by the survivors.  Bradley vs. Sebelius, 621 F.3d 1330 (11th Cir. 2010).

In contrast, even though it can be argued that the death benefit paid or payable to the spouse and dependents under 440.16 resembles non-economic damages, 440.39 nevertheless allows the employer and its workers’ compensation insurance carrier to recover up to the full amount paid. In pertinent part, subsection (2) provides as follows:

If the employee or his or her dependents [bold added] accept compensation or other benefits under this law or begin proceedings therefor, the employer or, in the event the employer is insured against liability hereunder, the insurer shall be subrogated to the rights of the employee or his or her dependents [bold added] against such third-party tortfeasor, to the extent of the amount of compensation benefits paid or to be paid as provided by subsection (3). If the injured employee or his or her dependents [bold added] recovers from a third-party tortfeasor by judgment or settlement, either before or after the filing of suit, before the employee has accepted compensation or other benefits under this chapter or before the employee has filed a written claim for compensation benefits, the amount recovered from the tortfeasor shall be set off against any compensation benefits other than for remedial care, treatment and attendance as well as rehabilitative services payable under this chapter.


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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.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.

DISCLAIMER: This information provided by Jeffrey P. Gale, P.A. is for informational purposes only and is intended to be used as a non-legal guide prior to consultation with an attorney familiar with your specific legal situation. It should not be considered legal advice or counseling. No such legal advice or counseling is either expressly or impliedly intended. This  information is not a substitute for the advice or counsel of an attorney. If you require legal advice, you should seek the services of an attorney.

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