Washington Dept. of Labor & Industries and Tobin

 Subrogation, or in other words, the repayment of medical and wage loss benefits to a health insurance carrier, PIP carrier, Medicare (ugh) or L & I is a subject that could take up an entire edition of The Everett Herald, or for that matter, the Seattle Times. But I'll try to make my point and move on.

Prior to the decision in Tobin v. Department of Labor and Industries, 165 Wn.2d 1016, 199 P.3d 411 (2009), DLI always calculated the amount of reimbursement it is owed by including the entire amount of the settlement/verdict which included general damages. I.e. compensation for pain and suffering. Well, the problem with that was that DLI was getting reimbursed out of compensation received for a benefit that they don't provide. So the Tobin Court reined them back in and said that the Department can only be reimbursed for benefits paid. So the Department could not get reimbursed out of a claimant's recovery for pain and suffering and could not use it in the distribution calculation under RCW 51.24.060(1).

To put it politely, the Tobin decision has ticked off the Department. I guess they think this is something new the court invented. But it's not. In Southwest Fiduciary, Inc. v. AHCCCS, 1 CA-CV 10-0300/10-0301, (2011), the Arizona Court of Appeals, Division 1, came to a similar conclusion. The Arizona Health Care Cost Containment System (AHCCCS) had been claiming a lien upon the entire recovery of the claimant, just like in Tobin.https://askcompetentlawyer.com/covid-19-related-employment-litigation/ The Arizona Court of Appeal clarified and stated that in the context of a tort settlement, AHCCCS's share should be calculated based upon the amounts it has paid.

From my perspective, the Tobin decision doesn't limit the recovery that DLI gets, but allows a claimant to actually keep compensation for pain and suffering that they deserve. So until DLI starts to compensate claimants for pain and suffering and other general damages, they just need to relax and back down.