The Massachusetts Supreme Judicial Court in Dicarlo v. Suffolk Construction Company determined that Workers Compensation Insurance Companies in Massachusetts were barred from placing a lien on the pain and suffering 3rd party negligence claims of injured victims. This ruling in the Commonwealth of Massachusetts dealt a significant blow to big insurance and their heavy handed and dilatory claims tactics
TOP MA Court slaps down big insurance
The MA top court reasoned that, “Examining the statute’s use of the term ‘injury,’ the court decided that the legislature could not have intended an expansive use of the term. Rather, the amount of the ‘injury’ that the insurer could recoup could only be that amount for which the insurer paid compensation… Since a worker’s compensation insurer does not compensate for pain and suffering, it likewise cannot be reimbursed from an amount characterized as such.” Visit site
MA and RI Workers compensation lawyers are aware of insurance heavy handed and greedy tactics
It is common knowledge in legal circles that indemnity companies are “in it to win it.” Winning for liability corporations is maximizing shareholder value which at its essence means instituting delay, deny, denigrate (the victim) and litigate claims tactics. Big insurance has been plagued by a long history of bad faith, hardball rambo litigation tactics and borderline quasi corrupt actions.
The law of subrogation – “the clawback”
Workers’s compensation Insurance companies in Mass. are entitled by statute to seek “subrogation” for workers comp. damages they tendered to the injured worker. According to the Insurance Journal “If an employee wins damages from a third party, the employee’s workers’ comp insurer is statutorily entitled to a lien on the recovery for the amount that the insurer paid to the employee in benefits.” http://www.insurancejournal.com/news/east/2016/03/04/400864.htm Subrogation and workers compensation lien issues typically occur in the following types of accidents:
- third party Rhode Island truck accident case when a trucker employee is injured during the course of employment by a motorist driving a different car or motor vehicle
- a construction accident involving a defective machinery or tools and a product liability cause of action
- a delivery person employee who is injured by another car motorist or tucker
It is only an “outlay’ to big insurance- the dehumanization of the victim
According to the American Insurance Association empty suit litigators, discussing the Massachusetts Supreme Judicial Court decision, “the court’s decision essentially reduces the pool of funds from which a workers’ compensation insurer can recoup its outlay” Id. This quote unquote “outlay” is not an outlay! It allows seriously injured workers to pay their rent, put food on the table and pay their medical bills while unable to work. This begs the question of why should an insurance company be allowed to recoup funds it paid to injured workers for pain and suffering?
This author can grudgingly understand why an insurance company may feel entitled to a subrogation lien against a financial recovery for lost wages or medical bills that an injured victim obtain against a third party tortfeasor. This would to be recover for lost wages and medical bills provided by the comp. insurer so that the victim does not get paid twice. But big insurance wants more then that, they want to claw back the compensation paid to injured workers for their loss of enjoyment of life, pain and suffering, disability, scarring and disfigurement awards against third parties.
SAY IT Ai’NT SO!
TOP MA Court slaps down big insurance
The pertinent case is Dicarlo v. Suffolk Construction Company, http://masscases.com/cases/sjc/473/473mass624.html Dicarlo v. Suffolk CONSTRUCTION CO., INC., & others; PROFESSIONAL ELECTRICAL CONTRACTORS OF CONNECTICUT, INC., third-party defendant. BERNARD J. MARTIN & another vs. ANGELINI PLASTERING, INC.,& others. 473 Mass. 624 October 8, 2015 – February 12, 2016 Court Below: Superior Court, Suffolk County Present: Gants, C.J., Spina, Cordy, Botsford, Duffly ,& Lenk, JJ. www.ripersonalinjurylaw.com
The idea that an insurance company is allowed to recoup funds it paid to injured workers for pain and suffering from third party claims is ridiculous! Workers compensation statutes typically exclude workers fro obtaining any insurance funds to compensate for pain and suffering so why should an insurance company be allowed to claw back funds paid to victims for their suffering, loss of enjoyment of life, loss of consortium, scarring and disfigurement?
MA workers compensation subrogation law
“Section 15. Where the injury for which compensation is payable was caused under circumstances creating a legal liability in some person other than the insured to pay damages in respect thereof, the employee shall be entitled, without election, to the compensation and other benefits provided under this chapter. Either the employee or insurer may proceed to enforce the liability of such person, but the insurer may not do so unless compensation has been paid in accordance with sections seven, eight, ten A, eleven C, twelve or nineteen nor until seven months following the date of such injury. The sum recovered shall be for the benefit of the insurer, unless such sum is greater than that paid by it to the employee, in which event the excess shall be retained by or paid to the employee. ” PART IADMINISTRATION OF THE GOVERNMENT TITLE XXILABOR AND INDUSTRIES CHAPTER 152WORKERS’ COMPENSATION Section 15Liability of person other than insured MGL c. 152, Sec. 15 https://malegislature.gov/Laws/GeneralLaws/PartI/TitleXXI/Chapter152/Section15
The Dicarlo case was a construction accident personal injury cause of action in Massachusetts. “DiCarlo, who suffered serious injuries to his back in 2004 while working at a construction site, received more than $281,000 in workers’ comp benefits for medical expenses and lost wages. DiCarlo and his wife then sued third parties including the construction site owner and the contractor managing that site. It resulted in a settlement of $100,000, with 35 percent of the settlement proposed to be allocated to DiCarlo’s pain and suffering and be exempt from the insurer’s lien.” Id.
Rhode Island Law
Similarly, in Rhode Island, “pain and suffering … is not compensable under the state workers’ compensation law.” Benders v. Ed of Governors for Higher Educ., 636 A.2d 1313, 1315 (R.I. 1994). UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND FRANK A. VELLUCCI, Plaintiff, v. CHAD MILLER, MTLS INTERNATIONAL, INC., and LIBERTY MUTUAL INSURA http://www.rid.uscourts.gov/menu/judges/opinions/mcconnell/12202013_1-13CV0091M_VELLUCCI_v_MILLER_P.pdf
The issue presented in the Vellucci RI workers compensation claim was: “The issue presented is whether (i) Mr. Vellucci is required to reimburse the workers’ compensation carrier the full amount of the recent settlement in his third-party lawsuit; or (ii) Mr. Vellucci is allowed to show that a portion of that settlement is for damages, i.e., pain and suffering, not included in the workers’ compensation payment he received from Ohio Casualty and therefore does not need to be reimbursed.” Id. hernia mesh
The operable statute states: “The employee, in recovering damages either by judgment or settlement from the person so liable to pay damages, shall reimburse the person by whom the compensation was paid to the extent o(the compensation paid as of the date of the judgment or settlement and the receipt of those damages by the employee shall not bar future compensation.” R.I. Gen. Laws§ 28-35-58. website
The Velucci court ruled “Certainly the workers’ compensation carrier is not entitled to reimbursement for money paid to Mr. Vellucci for which it did not make a corresponding workers’ compensation payment.” www.slepkowlaw.com/personal.htm
THE RI court reasoned, “Here, the word “reimburse” is defined by Black’s Law Dictionary as “[t]o pay back, to make restoration, to repay that expended; to indemnify, or make whole.” Liberty Lincoln-Mercury v. Ford Motor Co., 134 F.3d 557, 566 (3d Cir. 1998) (emphasis added) (quoting BLACK’S LAW DICTIONARY 1287 (6th ed.l990)). “Clearly, the word ‘reimburse’ signifies a re payment for money already [paid].” US. ex rel. Humphrey v. Franklin-Williamson Human Servs., Inc., 189 F.Supp.2d 862, 871 (S.D.Ill. 2002). Reimbursement therefore is limited to what has been expended or paid. One cannot be reimbursed for something that it did not pay.” FRANK A. VELLUCCI, Plaintiff, v. CHAD MILLER, MTLS INTERNATIONAL, INC., and LIBERTY MUTUAL INSURANCE COMPANY, Defendants. Velucci www.slepkowlaw.com