This case involved a claimant who slipped and fell on ice at a MA construction site in December 2007. When we received the subro assignment, claimant had already retained counsel to pursue a potential 3rd party case on his behalf. However, in MA, there is a “race to courthouse” after seven months of date of injury (claimant has exclusive right during the first 7 months). Since that period had lapsed, we retained counsel to file suit so we could control the action. Once the action was filed, we agreed to an apportionment agreement with claimant and his counsel, and included claimant’s damages in the suit. At a mediation in Boston, which we personally attended, a settlement was reached for $300,000.00, with $75,000.00 allotted to the claimant, $100,000.00 in attorney’s fee and $125,000.00 towards the workers’ compensation lien. With the statutorily required Section 15 petition, and a recent Curry decision, claimant attorneys attempt to gerrymander as much of the 3rd party settlement as possible to pain and suffering as well as loss of consortium, since the WC lien does not apply to such damages. By taking the lead in this case, we muted the effect of Curry on this case’s Section 15 petition, and maximized our client’s recovery.
by Nick Tesh
