Legal Question in Personal Injury in New Jersey

Good morning,

I am very sorry for the loss of your husband.

Under Section 40 of the NJ workers' compensation act, a workers' compensation insurance carrier is entitled to assert a lien for the workers' compensation benefits paid to you, out of a recovery from a third party (in this case, the driver of the car that struck your husband). Your attorney should be aware of this provision.

It is our practice to make this reimbursement rule very clear to our clients; and we take the amount of the workers' compensation lien into consideration when we negotiate a settlement with the third party. We always, every time, make our clients aware the workers' compensation carrier must be reimbursed from the third party settlement.

Am I correct in understanding your attorney failed to:

1. Inform you of the workers' compensation carrier's right of reimbursement from your claim against the car that struck your husband?

2. Deduct the workers' compensation lien and repay the workers' compensation insurance carrier from the proceeds of your settlement with the car?

If so, you may have a legal malpractice case against your attorney. The next question is whether the statute of limitations has expired. The usual time period to initiate a legal malpractice claim is two years (2) from the date of malpractice. However, there is a special rule called the "discovery rule" which may extend the time period to initiate your claim.

My partner and I are happy to discuss the merits of your case with you. Please feel free to call us at (973) 596-1987