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Massachusetts: Employer’s Subrogation Rights Do Not Extend to Worker’s Pain and Suffering Recovery

February 19, 2016 (1 min read)







The Supreme Judicial Court of Massachusetts held that while an employer is entitled to a lien on an employee’s recovery from a third party for work-related injuries under Mass. Gen. Laws ch. 152, § 15, the lien does not attach to damages paid by a third party for an employee’s pain and suffering. The Court acknowledged that the statute provided for an employer’s lien on the “gross sum received in payment for the injury.” The Court observed that the employee argued that the term “injury” should be construed narrowly to mean only those injuries for which workers’ compensation benefits are payable, thereby excluding pain and suffering from its purview and, by consequence, excluding damages for pain and suffering from the reach of an insurer’s lien. The employer argued for a broad reading of injury, as used in the phrase “gross sum received in payment for the injury.” Holding that an employer or insurer “cannot be reimbursed for something that it did not pay,” the Court sided with the employee. The insurer had not paid for the pain and suffering endured by the employee and it, therefore, had no lien on the settlement proceeds that were appropriately designated for pain and suffering. The Court also added that where an employee received both workers’ compensation benefits and damages for pain and suffering, there was no “double recovery.”

Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is the co-author of Larson’s Workers’ Compensation Law (LexisNexis).

LexisNexis Online Subscribers: Citations below link to Lexis Advance. Bracketed citations link to

See DiCarlo v. Suffolk Constr. Co., Inc., 2016 Mass. LEXIS 88 (Feb. 12, 2016) [2016 Mass. LEXIS 88 (Feb. 12, 2016)]

See generally Larson’s Workers’ Compensation Law, § 117.05 [117.05]

Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law.









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