Jeffrey P. Gale, P.A. // Valuation Date for Workers’ Compensation Subrogation Lien

Personal injury and workers’ compensation cases differ significantly in the remedies they offer and the parties they involve. It is not uncommon for an individual injured in the course of employment to also have a viable personal injury claim. Workers’ compensation cases are brought against the employer and its insurance carrier, whereas personal injury actions target the negligent third party responsible for the incident, including any entities that may be vicariously liable for their conduct.

One of the most significant distinctions between workers’ compensation and personal injury cases lies in the role of fault: workers’ compensation operates as a no-fault system, while personal injury claims require the injured party to prove that another’s negligence caused the harm. Because workers’ compensation operates as a no-fault system, benefits are typically provided from the outset of the claim. In contrast, personal injury cases often require lengthy litigation to establish fault, meaning compensation may not be received for months or even years.

Pursuant to Florida Statute § 440.39, when an employee or their dependents accept workers’ compensation benefits or initiate proceedings to obtain them, the employer—or its insurer—is subrogated to the rights of the employee or dependents against any third-party tortfeasor. This subrogation applies to the extent of compensation benefits paid or payable, as outlined in subsection (2).

This right of subrogation entitles the employer and its workers’ compensation insurer to reimbursement from any recovery the injured employee obtains—whether by judgment or settlement—from a third-party tortfeasor.

The employer and its workers’ compensation carrier rarely recover the full value of their lien. Florida Statute § 440.39(3)(a) sets forth the formula used to calculate the extent of their recovery. It calls for a pro rata determination. The Florida Supreme Court’s decision in Manfredo v. Employer’s Casualty Insurance Co. provides a clear and accessible explanation of how the statutory formula operates in practice.

In Liberty Mutual Insurance Company v. Robert A. Lee (Feb. 7, 2025), the issue concerned the proper “valuation date” for calculating the subrogation lien. Lee argued that Liberty Mutual was entitled to reimbursement of only 11.61% of the benefits it had paid through the date of his settlement with the elevator operator. Liberty Mutual, by contrast, maintained that it should be reimbursed for 11.61% of the benefits it paid through the date of the equitable distribution.

The valuation date was important in the Lee case because Liberty Mutual paid over $300,000 in benefits to Lee and on Lee’s behalf after the date of the settlement agreement.

Liberty Mutual argued that its position is supported by the plain language of section 440.39(3) providing that the lien applies to “benefits paid or to be paid.” Florida’s Sixth District Court of Appeal agreed.

The Court’s decision made a $34,830.00+ difference.

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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.

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