INSIGHTS On Massachusetts Personal Injury Law

Welcome to the SUGARMAN blog. We'll be sharing our perspectives on the state of the law and current legal issues in Massachusetts personal injury law. Issues relating to medical malpractice, construction site injuries, premises liability, product liability, motor vehicle accidents, insurance, and more will all be reviewed here by our team of lawyers who have prosecuted some of the most complex cases in Massachusetts personal injury law.

Articles Posted in Workers Compensation

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The recent death of a man in a New Bedford seafood plant presents a sad reminder of the dangers faced by industrial workers. According to the most recent publication from the Bureau of Labor Statistics, in 2011 alone there were 4,693 fatal work injuries in the U.S.

When a worker is seriously injured or killed on the job, OSHA investigates, as was apparently done in this case. By definition, OSHA’s investigation focuses on the employer, and whether the employer could have or should have done something more to prevent the injury. OSHA investigations are nearly always critical of the employer in some respects, because it is OSHA’s job to critique employers on safety practices.

What OSHA rarely focuses on are other causes of accidents beyond the employer’s control. For example, improperly designed machines are common causes of workplace injuries and deaths. Often, the adequacy of a machine’s guards and warnings is either not addressed by OSHA, or unfairly blamed on the employer who is not in the business of machine design.

Why can this be important to the injured worker or his family? Because by law, with rare exceptions, an employee may not bring a claim for negligence or personal injuries against his employer. No matter what fault OSHA finds lies with the employer, all the employee is entitled to is worker’s compensation benefits, which are often modest compared to the real damage done to the worker and his family.

If, however, a worker is injured because of a defective machine, the worker may very well have a separate claim against the machine manufacturer. In such a claim, the worker can collect the full amount of his damages beyond worker’s compensation benefits.

For this reason, in order to preserve their rights, workers and their families should make sure that there is an investigation of all causes of an accident–including any machinery involved–and not just rely on the investigation conducted by OSHA.
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In virtually every personal injury case, there is a claim (often called a lien) by a third party to be repaid out of the case settlement.  Most frequently this lien is for the amount of medical benefits paid because of the injury.  How this lien for repayment relates to the attorney’s contingent fee usual in a personal injury case is important to the net amount that the injured victim actually receives from a settlement.  Clients often express the concern that after health insurance or other third parties are repaid and after the percentage is paid for attorney’s fees, there will be little left to compensate them as injured victims.  This concern is well-founded where the settlement in a personal injury claim has to be discounted for reasons such as insufficient insurance, inability of the guilty party to pay or disputed liability.

The relationship between liens and fees depends on the type of lien.  Workers’ compensation insurers are required by law to pay attorney’s fees and expenses in the same proportion as their claim bears to the total injury settlement.  In essence, workers’ compensation insurers pay part of the attorney’s fees and expenses.  Medicare liens operate the same way, with Medicare reducing its right to repayment by its proportionate share of attorney’s fees and expenses.

The story is different for health insurers in Massachusetts.  Health insurance liens are entitled to repayment in full without having to take a reduction for attorney’s fees and expenses.  This was the result of a Supreme Judicial Court case, Pierce v. Christmas Tree Shops.  This rule has the potential for creating the situation where the insurer and the attorneys receive most of a settlement with the injured victim receiving little.  Attorneys representing personal injury victims should attempt to negotiate a lien reduction with the health insurer to avoid this.  Health insurers often, but not always, are willing to give some credit for attorney’s fees and expenses where collecting their full lien will deprive the injured victim of compensation. 
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It is fairly common knowledge that if you get hurt on the job your employer has to provide Workers’ Compensation benefits while you recover from your injuries. Those benefits include a percentage of your average weekly wages and medical treatment for any work related injuries. Irrespective of who was at fault, your employer must provide these benefits by law. What many people may not know is that, in return, your employer enjoys complete immunity from any lawsuits arising out of work related accidents. An employee receiving workers’ compensation is barred from suing his employer (and fellow employees) for injuries sustained on the job. Immunity extends only to the employer, however, employees injured by third parties have the right to seek damages for injuries caused by another’s negligence.

For example, construction projects typically involve a variety of trades working on the same site. If an employee from a plumbing sub-contractor was injured because an electrical sub-contractor allowed a dangerous condition to exist, the injured worker has the right to sue the electrical sub-contractor for third party negligence. Another potential defendant in this scenario might include the general contractor for failing to have an appropriate safety procedure at the site that would have eliminated the dangerous condition. These liability claims against other contractors are known as “third-party claims”
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