News & Knowledge

DIA Launches New Section 15 Interactive Petition

In May 2012, the Massachusetts Department of Industrial Accidents unveiled an updated Section 15 Petition tool to incorporate recent changes in case law. This tool helps parties prepare petitions for approval of settlements and performs the calculations necessary to complete all allocations to the parties involved. The update was necessary because of the recent Appeals Court decision, Curry v. Great American Insurance Co., 80 Mass. App. Ct. 592 (2011), rev. denied, 461 Mass. 1103 (2011), petition to reconsider denied, App. Ct. No. 2010-P-2014 (February 3, 2012).

In Curry, the plaintiff submitted a wrongful death claim to arbitration, resulting in a $300,000 award. The insurer who had paid the employee benefits under the Workers’ Compensation Act asserted its lien rights under Section 15. The plaintiff sought to allocate money for “loss of consortium and conscious pain and suffering” of the employee “to which [the insurer’s] lien would not attach . . .” Id. at 593.

Following the submission of proposals from each party, detailing how the tort recovery should be allocated, a Superior Court judge approved the plaintiff’s proposal. The approved proposal allocated sums for the plaintiff’s loss of consortium claims and the employee’s conscious pain and suffering. The defendant appealed, challenging the plaintiff’s right to allocate the settlement proceeds as described. The Appeals Court, noting “that workers’ compensation benefits do not compensate an injured employee for conscious pain and suffering,” concluded that “Great American’s claim that it is entitled to the allocation for conscious pain and suffering is therefore without merit.” Id. at 597.

This reflects a major change in the law, as prior to this decision, only allocations for loss of consortium of family members were beyond the reach of the workers’ compensation insurer’s lien and therefore not subject to offset against the employee’s future entitlement to workers’ compensation benefits. See Hunter v. Midwest Coast Transport, 400 Mass. 779 (1987). Following Curry, Section 15 petitions must now specify the amount allocated to compensate the employee for her/his conscious pain and suffering, and those amounts – which could be considerable – will not be subject to the workers’ compensation lien.

The new procedure could lead to more litigation regarding third-party settlements. Where the employee and the workers’ compensation insurer are unable to agree on the amount of an allocation, each party may submit a petition delineating the amounts of all proposed allocations and request a hearing before the Board, which will consider the merits of the settlement as proposed.

One may download the Section 15 Interactive Petition and the Section 15 Calculator Worksheet at the following link:

http://www.mass.gov/lwd/workers-compensation/wc-pubs/forms/form-list-alphabetical/

Should you have any questions about DIA forms or any workers’ compensation issue, please feel free to contact Tamara Lee Ricciardone, Esq. at: TRicciardone@SmithDuggan.com or 617-228-4450. © 2012