Does a workers compensation insurer (or self-insurer) have a right to recover WC medical and lost wage benefits from the no-fault carrier of a vehicle in which a worker is injured during the course of his employment?

Yes, says the New York State Insurance Department, in certain circumstances.

No fault coverage is not primary when an employee receives injuries as a result of a motor vehicle accident while in the course of their employment, wrote the Insurance Departments General Counsel in a position letter dated 3 January 2003. In that instance, coverage is provided under the Workers Compensation Law, which coverage is primary in lieu of no-fault benefits.

But Insurance Law section 5105 (the loss transfer statute) provides that no-fault and workers comp carriers have the right to recover the amount paid from the insurer of any other covered person when the other person was at fault for the accident and would have been liable to pay damages in a lawsuit to the injured party. However this right of recovery exists only when one of the vehicles in the accident weighs over 6,500 pounds or is used principally to transport people or property for hire.

It must be concluded that workers compensation medical and loss wage benefits, paid by workers compensation insurers to injured employees, are recoverable in loss transfer arbitration when one of the vehicles involved weighs in excess of 6,500 pounds or is used principally for transporting persons or property for hire.