Third-Party Pain & Suffering Not Subject To Workers Comp Lien

Curry v. Great American Insurance Company

In a recent case, Curry v. Great American Insurance Company, the Massachusetts Supreme Judicial Court held that verdict and settlement allocations for pain and suffering are not subject to the workers compensation insurer’s lien under MGL c. 152, s. 15.

Curry involved a medical malpractice and wrongful death lawsuit brought by a widow whose husband was seriously injured in a work-related car accident.  The employee was rushed to the hospital and, later, died.  The lawsuit sought damages for the employee’s conscious pain and suffering and loss of consortium.  The case was decided by binding, high-low arbitration, and the plaintiff was awarded $300,000.

Pursuant to MGL c. 152, s. 15, the settlement had to be approved by a Superior Court Judge or Department of Industrial Accidents Administrative Law Judge.  The plaintiff submitted the matter for approval to the Superior Court Judge where the lawsuit was pending.  Neither the plaintiff nor the workers comp insurer could agree on the allocation of the arbitration award and the amount subject to the workers comp lien.  Eventually, the Superior Court approved the plaintiff’s revised proposed allocation which included $100,000 for expected lost income (which would be subject to the workers comp lien), $100,000 for conscious pain and suffering and $100,000 for loss of consortium for the deceased employee’s widow and minor child.

Curry Appeal

The workers comp insurer appealed.  The Massachusetts Supreme Judicial Court affirmed the Superior Court’s approval of the final proposed allocation.  The SJC held that the workers comp insurer’s lien does not apply to verdict or settlement allocations for pain and suffering and loss of consortium because the Massachusetts Workers Compensation Statute, Chapter 152, does not compensate an injured employee for conscious pain and suffering and, likewise, there is no workers compensation benefits for loss of consortium.  Accordingly, those elements (i.e., conscious pain and suffering and loss of consortium) of a verdict or settlement are outside the workers comp benefits paid by the workers comp insurer and, therefore, not subject to the workers comp insurer’s statutory lien under MGL c. 152, s. 15.

Major Changes to Massachusetts Third Party Claims

Curry has brought a major change to Massachusetts third-party claims practice.  The Department of Industrial Accidents has announced that it will not approve any proposed third-party settlement petition unless the petition includes an allocation for conscious pain and suffering.

If you have any questions concerning a work injury or potential third-party claim, contact Attorney John Sheehan for a free, no obligation consultation.