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Major Change in Law Allows Better Recovery for Injured Workers

By: Brian C. Dever, Esq.


This is major change in case law.

As many former clients of this firm are aware, we often represent parties that have third party claims. The injured party is the first party. The second party is their employer and the third party is anyone else who can be blamed for the accident. However, often our clients have a pending worker’s compensation claim which results in a worker’s compensation lien on the recovery of the third party case pursuant to M.G.L. 152 Section 15. For the last 25 years under the case Hunter v. Midwest Coast Transport, Inc., it has been argued that liens must be paid back in full less prorated attorney’s fees and expenses before any net dollars get disbursed to the client. The exceptions to that has been the consortium claims of the spouse or child which is not subject to the worker’s compensation lien.

Traditionally, we have dealt with that in many ways but in most cases we have been able to work out agreements with the insurers to do a fair distribution of the proceeds with a reduction of the worker’s compensation lien. While that may be true in most cases, sometimes the insurers would draw a line in the sand which forced bad cases to trial.

Recently, in the case of Curry v. Great American Insurance Company, the Appeals Court  in Massachusetts rendered a decision that essentially legally recognizes a long held belief:
1. That M.G.L. 152 Section 15 [the right to recover a worker’s compensation lien] was in place to prevent a double recovery for the same injury;
2. Under M.G.L. 152, Section 15 the only recovery that the injured party got was economic recovery. That is they received indemnity for lost wages and medical bill payments. They got nothing for their pain and suffering;
3. Under Curry, the Appeals Court has finally recognized that the injured parties pain and suffering or non economic damages are not subject to the worker’s compensation lien.

80 Mass.App.Ct. 592 (2011)

Consequently, the Appeals Court now leaves it to the Superior Court judge and/or the Industrial Accident Board ALJ to decide if the apportionment of the settlement is fair to all the parties including the lienholder. It allows the judge to have discretion over the allocation where as before the Curry decision it was viewed that the judge did not have that level of discretion. While the judge cannot do the allocation, the judge can approve what he or she feels is a fair allocation.

As the Curry case involved a statutory claim under the wrongful death statute, there is one Superior Court decision that argues that Curry only applies in a Wrongful Death claim. However, the Appeals Court in the Curry decision footnote #7 concluded that the fact that this was a Wrongful Death claim has no nothing to do with how they are interpreting the application of M.G.L. 152, Section 15 liens to the non economic claims of the injured party.

Keches Law Group, P.C. has been aggressive in applying Curry to our cases since the decision advocating as strongly as possible on behalf of our clients.


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