Law-BooksBeware ERISA Liens in Personal Injury

Accident Cases

The ERISA or the Employee Retirement Income Security Act is a federal law that may impede or preclude you from obtaining a fair and reasonable settlement for your accident or injury claim.
Wisconsin law has long held that a health insurance provider that claims subrogation under a contract is not allowed any share of the settlement if the total amount recovered by the injured person does not cover his entire loss.  Even if an injured person receives a settlement that is greater than the subrogated amount claimed by the insurer (the amount of medical expenses paid), the insurer is not entitled to be repaid unless the injured person has been made whole for his loss.

For example, if you are seriously injured in a car accident and have incurred medical expenses of $250,000.00, but only receive a settlement of $150,000.00 because that was all the available insurance, you will probably not have to reimburse your health insurance provider for the $150,000.00 that it paid for your medical expenses because you have not been made whole.

However, if your medical expenses are paid by a self-insured plan which is established under the Employee Retirement Income Security Act (ERISA), all bets are off.  When an ERISA health plan pays for your medical expenses, it can demand reimbursement of most or even all of the money you receive in a settlement for a personal injury.

If you are injured in an automobile or other type of accident and your medical bills are paid by an employer funded plan, whether it is partially insured or completely self-funded, you  need to obtain a lawyer skilled in the area of dealing with ERISA plans.  Courts have ruled that ERISA liens can trump a catastrophically injured plaintiff’s need for lifetime care, consume a special needs trust, and lay claim to an entire settlement.

Eisenberg Law Offices, S.C. knows how to deal with ERISA health plan liens.  We have extensive experience in evaluating employee benefit health plan liens, including knowledge of Summary Plan Descriptions and potential ways to defeat a health benefit plan lien on your personal injury settlement.

Eisenberg Law Offices, S.C. has the knowledge to determine whether your employee benefit plan contains the necessary language to enforce its lien.  Many plans fall short of using language that effectively creates a lien on settlement proceeds.  Other plans fail to sufficiently negate the “make whole” doctrine, the “fund” doctrine, the “common fund” doctrine or the “attorney’s fund” doctrine.

Recent Supreme Court cases have held that an ERISA employee benefit plan is entitled to pursue remedies only for appropriate equitable relief and under certain circumstances a plan may be entitled only to its pro rata share of expenses paid.  There are numerous issues involved in determining the validity of a plan’s reimbursement claim.

If you are injured in an accident and have had some or all of your medical expenses paid by an employee benefit plan that claims it is an ERISA, you need an attorney well versed in ERISA plans to examine the employee health plan documents to ensure that you receive all that to which you are entitled.

Make sure that you hire an attorney to protect and assist you in your personal injury claim especially if it involves medical payments and other benefits paid by an ERISA health and benefit plan.  Eisenberg Law Offices, S.C. can help you understand this difficult and confusing area of law.

Contact the Personal Injury Attorneys of Eisenberg Law


308 East Washington Avenue Madison,
WI 53703
(608) 256-8356

Eisenberg Law Offices, s.c.

Madison WI Attorneys since 1983



Medical Malpractice

Medical Malpractice

$12.7 Million

Truck/bike collision

Truck/bike collision

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truck/semi tractor collision

truck/semi tractor collision

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personal injury

personal injury

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car accident

car accident

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