SJC holds worker's compensation lien does not apply to damages allocated to pain and suffering

Robert DiCarlo and Bernard Martin were both injured in the course of their employment and received worker's compensation benefits from Twin City Insurance Company.  They subsequently settled third-party claims.  Those settlements included damages for pain and suffering. 

The insurer sought reimbursement for itsworker's comp payments, including reimbursement from the pain and suffering portions of the third-party settlements. 

In DiCarlo v. Suffolk Construction Co., Inc. __ N.E.3d __, 2015 WL 10045032 (Mass. 2016), the Supreme Judicial Court of Massachusetts has held that the worker's comp lien does not extend to damages allocated to an employee's pain and suffering.

The SJC based its decision on  interpretation of the word "injury" in Mass. Gen. Laws ch. 152, §15, the statute allowing worker's comp insurers to recover "the gross sum received in payment for the injury." 

U.S. District Court holds worker's comp carrier cannot intervene in third-party claim

Brian Goodrich brought a products liability case alleging that he was injured while using a machine in the course of his employment.  His worker's comp insurer, NorGuard, moved to intervene in the case, asserting that it has a subrogation interest in any potential damages recovered by Goodrich.

In Goodrich v. Cequent Performance Prods., Inc., 311 F.R.D. 22 (D. Mass. 2015), the United States District Court for the District of Massachusetts denied the motion to intervene. 


Fed. R. Civ. P. 24(a) allows a party to intervene if the party claims an interest relating to the property or transaction at issue.  However the rule has an exception if "existing parties adequately represent that interest." 




Mass. Gen. Laws ch. 152, §15 provides that sums recovered in a third-party claim where the worker's comp carrier has paid a claim for that same injury are for the benefit of the insurer up to the sum it paid.  The insurer has an opportunity to be heard on a motion for approval of any settlement of the claim. 


The statute also bars the insurer from bringing suit against a third party if the injured employee has already filed suit against that party. 

Superior Court limits amount recoverable under worker's compensation lien

In Curry v. Great Am. Ins. Co., 2010 WL 1795375, the Superior Court held that the recovery under a lien of a worker's compensation carrier in a wrongful death case was limited to the portion of damages allocated to loss of net expected income of the next of kin of the deceased. The worker's compensation carrier was not entitled to the portions of the damages allocated to conscious pain and suffering or loss of consortium. Its recovery was so limited because damages for loss of net expected income represented benefits "that are duplicated by the worker's compensation benefits."

The court also held that the insurer and the plaintiffs must each pay their proportionate share of the legal fees and costs in the wrongful death action.