What is a Third Party Claim?

What about my pain and suffering? That’s a question we frequently are asked by workers injured on the job. Workers compensation is a limited remedy. You get your lost wages and medical bills paid no matter who is at fault, but you give up your ability to make a claim for pain and suffering.

In ordinary civil “tort” cases – car accidents, slip and falls, product liability injuries- “pain and suffering” is the way we describe how an injury affects your day-to-day life. It incorporates the disruption in your life, your actual pain, your loss of enjoyment of hobbies and leisure activities, and other damages that are not easily quantified. This makes up a significant proportion of the overall care value.

Your employer and fellow employees are immune from this liability. You’re not allowed to sue them. Even so, you’re still allowed to sue anyone else if they caused your injury. You’ll need to show that negligence of someone other than your employer or a fellow employee contributed to the injury. This is a “third party” claim.

If you’re a plumber, or an electrician, or a painter, you may often find yourself on a jobsite with workers from other trades. Your employer may be a subcontractor on a larger project where other subcontractors are working. In these cases, some subcontractors end up leaving debris on the floor for others to trip on. If you trip and injure your shoulder, you have a negligence claim against the plumber and his or her employer.

You may also have a claim against the general contractor. A general contractor on a project has an overall duty to keep everyone safe. You may be cleaning debris on an upper level with an unguarded opening in the floor. If you fall through it, you can obviously get workers compensation benefits. But the general contractor who had reason to know of the unguarded opening has been negligent and is open to a claim for full tort damages, including pain and suffering.

For decades, the workers compensation insurance company was entitled to collect all the money it had paid on your case before you could retain any money from the resolution of your third-party case. Third party cases with limited recoveries did nothing for employees. That all changed in 2011. In Curry v. Great American Ins. Co., the Massachusetts Appeals Court barred workers compensation insurers from collecting from so much of the negligence case recovery designated for “pain and suffering”. However the Curry decision totally ignored a 1993 ruling in Rhode v. Beacon Sales Co., where the state's highest court, the Supreme Judicial Court, appeared to have said the exact opposite.

Five years later, in DiCarlo v. Suffolk Construction Co., the insurance companies thought they had their chance to overturn Curry and go back to the old system. Marcotte Law Firm became directly involved. Lowell Attorney Michael Najjar filed a brief that provided a route around Rhode, arguing that based on the history of the workers compensation statute, Rhode itself was wrong. The SJC adopted his reasoning and without expressly overturning Rhode, severely limited the meaning everyone attributed to it. The rule in Curry stood; injured workers and workers compensation insurers have to share the proceeds of third-party recoveries.

The Lawyers at Marcotte Law Firm not only knows how to look for all avenues of recovery with worksite injuries, it is directly responsible for employees getting to share the actual benefits of those recoveries no matter how much the employer’s insurance company would like to grab. You need a lawyer with this kind of experience to maximize your benefits. Picking a lawyer without the necessary experience can lead you to leave money on the table.

Do not be fooled by lawyers who advertise nationally who are just referral agencies to other local attorneys. Call the Lowell Workers Compensation lawyers at Marcotte Law Firm, real soldiers in the fight to preserve injured workers’ rights.