Injured Workers' Rights When Pursuing a Medical Negligence Action Arising Out of Treatment for a Work Injury

In a personal injury action, the injured person may recover past and future pain and suffering, special damages, medical expenses and wage losses.

Ordinarily, an insurance company paying wage loss or medical expense benefits in connection with a work injury has a right to recover for medical expenses and wage loss benefits in an action against a negligent party who caused the work injury.

It is not clear whether future medical expenses or wage loss benefits are recoverable.

Usually, the courts do not allow the negligent party to offer evidence that the injured person has received money from other sources, including workers' compensation, in order to reduce the damages payable to the injured party.

This rule, however, is limited in medical negligence actions, in which an injured person "is precluded from recovering damages for past medical expenses or past lost earnings incurred to the time of trial to the extent that the loss is covered by a private or public benefit...that the claimant has received prior to trial."

This means that in a medical negligence action, the injured party is not allowed to collect for past medical expenses or wage loss benefits if those expenses have been paid by a workers' compensation carrier.

Bottom line: If you are collecting workers' compensation benefits and are pursuing a medical negligence action arising out of treatment for the work injury, the attorney representing you in the medical negligence action has to be very careful about settling the case if he does not understand how the MCARE Act interacts with the workers' compensation act.

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