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When a Lien is not Lean:

Liens are taking on a major role in the resolution of personal injury cases. By contract, almost every health insurer can assert a lien on their subscriber’s third party recovery. This has major implications for the case. A lien is not limited to a private health insurer, but can arise from Medicare, MassHealth, or any other governmental program.

Liens can also arise by operation of Massachusetts General Laws Chapter 152. That is the Worker’s Compensation Statute and under Section 15 of that statute there must be court approval for any third party case. The purpose of this is to protect the employee who, by Chapter 152, must repay the worker’s compensation insurer for what it has paid him/her less offsets for attorney’s fees and expenses in litigating the case.

It is the health insurance liens that are becoming the bigger issue. One way to deal with them is to challenge on a line-by-line basis exactly what is included in that lien. Invariably, the lien will have other, unrelated, medical treatment. In those cases, the lien holder will adjust downward the figure. The problem is that the lien holder all-too readily will send the notice but not “parse” it unless forced to do so.

Adding insult to injury is a case ten years ago in Massachusetts known as Pearce v. Christmas Tree Shops. The effect of that decision is that the offsets which are permitted in the context of third-party claims arising as a result of an on-the-job injury are not available in reducing health insurance liens. Nevertheless, it never hurts to ask.

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