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I have been asked this question many times over the years by clients who have received serious personal injuries at work. Workers compensation pays the injured employee regardless of whether the employer or anyone else was negligent, and even if the employee’s own negligence contributed to his injuries. Worker compensation laws are essential, but they are something of a devil’s bargain.

The tradeoff for certainty of payment is that the compensation is grossly inadequate in cases of death or disabling injury, and the employer cannot be sued. The personal injury attorney contacted by a person who was badly injured on the job, must look for a viable “third party defendant.” The third party defendant is a person or entity, other than the employer or a fellow employee, whose negligence contributed to the injury. For example, a negligent subcontractor in a construction accident case, might be a third party defendant. If the workplace injury was caused by a defective product, the product manufacturer could be a third party defendant. Sometimes, maintenance or security on a work site, is performed by an entity other than the employer. In the appropriate case, they might be third party defendants.

In any tort case in which workers compensation insurance has been paid, the insurer has a lien on the potential recovery, from which it can recoup the money it paid to the injured employee. In Massachusetts, the lien is automatically reduced by a third, the notion being that the plaintiff’s attorney’s efforts benefited the comp. insurer, which should be responsible for their portions of the attorneys fees. Worker compensation insurers are often willing to reduce their liens further, in order to facilitate a settlement, enabling both the comp. insurer and the injured employee to benefit.

For more information on this subject, please refer to our section on Workplace Injuries and Discrimination.

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