Under Massachusetts law, generally speaking, if an employee is injured on the job, he has a workers compensation claim. He may receive worker's compensation benefits for his injuries and disability from his employer's workers compensation insurance company. He may not sue his employer. However, in some situations, an injured employee may have a right action against someone other than his employer or co-worker. A third party, someone other than the injured worker's employer or co-worker, may be liable for the employee's injury and harm. This is oftentimes referred to as third party liability. A third party claim is in addition to the workers compensation case.

Q: What are some examples of third-party liability claims?

A: Common situations in which third party claims arise are: on the job motor vehicle accidents, work-related slips, trips or falls (on property owned or maintained by someone other than the employer), workplace accidents involving machines or harmful chemicals, medical malpractice associated with the treatment of work-related injuries.

Q: How is a third-party liability claim pursued?

A: A third party claim is an independent lawsuit. The lawsuit names the employee as a plaintiff and the third party as a defendant. The lawsuit is governed by relevant procedures, limitations and the law of Massachusetts as it relates to the subject matter of the lawsuit. Typically, a third party claim is pursued while a workers compensation claim is ongoing.

There is a significant difference between a workers compensation case and a third party claim in terms of proving liability. Workers compensation is sometimes referred to as a no fault system. In other words, an injured worker need not prove that anyone was at fault in order to receive benefits. In a third party claim, the plaintiff must prove that the defendant was at fault e.g. negligent, in causing harm.

Q: What is the relationship between a third party claim and a workers compensation case?

A: Under the Workers Compensation Act in Massachusetts, the workers compensation insurance company has a right to recover the amount of benefits it pays to or on behalf of the injured worker from any recovery in the third party claim. In other words, the injured worker receives only the excess of the recovery over and above the amount of the workers compensation benefits paid by the insurance company (sometimes referred to as the workers compensation lien). In addition, there are other significant considerations in the relationship between workers compensation and third party liability. For example, an injured worker who receives an excess from the recovery in the third party case may not be entitled to full workers compensation benefits after the end of the third party case. A complex calculation is used to determine what percentage of benefits an injured employee receives if there is a statutory excess in the third party recovery.

Q: Does it make sense for the same lawyer to handle the workers compensation claim and the third party liability case?

A: A strong argument can be made that the same lawyer or law firm should handle both cases in view of the interrelationship of the claims. Lien and statutory excess issues as well as practical matters of communication and negotiation are reasons for the same lawyer or law firm to coordinate the pursuit of both claims, provided the lawyer or law firm is competent to do so.

Q: How do I know if I have a third party case?

A: The only way to know if your work-related accident involves the liability of a third party is to speak with a knowledgeable personal injury attorney. Be prepared to identify all persons or entities involved in the accident. For example, it is useful to have information about the ownership of property or the manufacturer of a machine. First, the attorney must be able to identify that there is a third party (someone other than your employer or co-worker) involved in causing your accident or injury. Second, if there is a third party, the attorney must be able to evaluate the liability or fault of that person. Third, the attorney must have information about how you have been harmed, i.e., what damages you have suffered as a result of the accident.

There is really nothing to lose in arranging a free consultation to discuss a potential third party claim. Remember. There are time limits for filing lawsuits in third party cases. Time limits vary, depending upon the nature of the case. There may be procedural requirements for pursuing certain kinds of cases as well.

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