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Workers' Compensation Subrogation In All 50 States - 5th Edition - Hardcover
Workers' Compensation Subrogation In All 50 States - 5th Edition - Electronic
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§ 11.22 Massachusetts
§ 11.22[1] Statutory Subrogation Rights
Workers' compensation subrogation in Massachusetts is governed
by statute.1 Section 15 is often referred to in Massachusetts as the
"race to the court house." This is because the employee has the
exclusive right to pursue a third-party action until seven months after
the date of the injury.2 Therefore, a workers' compensation carrier
should carefully diary any potential third-party action for filing seven
months after the date of the injury. In Massachusetts, whoever files
first controls the action.3 The workers' compensation carrier has no
obligation to pursue anything in excess of its workers' compensation
lien in order to compensate the employee. The purpose of the
workers' compensation statute is to prevent a double recovery by the
employee.4 The Act transfers the claimant's right to enforce the
liability of the third party to the carrier.5 The workers' compensation
carrier has the same three-year statute of limitations running from the
date of the injury, as does the worker.6 Section 15 reads as follows:
§ 15. Liability of person other than insured.
Where the injury for which compensation is payable was
caused under circumstances creating a legal liability in some
person other than the insured to pay damages in respect
thereof, the employee shall be entitled, without election, to the
compensation and other benefits provided under this chapter.
Either the employee or insurer may proceed to enforce the
liability of such person, but the insurer may not do so unless
compensation has been paid in accordance with sections
seven, eight, ten A, eleven C, twelve or nineteen nor until
seven months following the date of such injury. The sum
recovered shall be for the benefit of the insurer, unless such
sum is greater than that paid by it to the employee, in which
event the excess shall be retained by or paid to the employee.
For the purposes of this section, "excess" shall mean the
amount by which the gross sum received in payment for the
injury exceeds the compensation paid under this chapter. The
party which brings the actions or which pays the costs
associated with the action, if the party bringing the action
does not pay those costs, shall be entitled to retain those costs
recovered in the action. Any interest received in such action
shall be apportioned between the insurer and the employee in
proportion to the amounts received by them respectively,
§ 11.22 Massachusetts
§ 11.22[1] Statutory Subrogation Rights
§ 11.22[2] Third Parties
§ 11.22[3] Allocation of Third-Party Recovery
§ 11.22[4] Attorneys' Fees and Costs
§ 11.22[5] Credit/Advance
§ 11.22[6] Related Subrogation Issues
§ 11.22[7] Statutes of Limitations
§ 11.22[8] Workers' Compensation in Massachusetts
Gary Wickert is an insurance trial lawyer and is regarded as one of the world's leading experts on insurance subrogation. He is the author of several subrogation books and legal treatises and is a national and international speaker and lecturer on subrogation and motivational topics. Mr. Wickert is also a politician in Wisconsin, serving his fourth term as Town Supervisor in the Township of Cedarburg. After 15 years as the youngest managing partner in the history of the 30-lawyer Houston law firm of Hughes, Watters & Askanase, L.L.P., he returned to his native Wisconsin in 1998 and co-founded the firm of Matthiesen, Wickert & Lehrer, S.C. He oversees a National Recovery Program which includes a network of nearly 300 contracted subrogation law firms in all 50 states, Mexico, Canada and the United Kingdom and boasts recoveries of more than $500 million in recoveries and credits for more than 250 insurance companies. Gary Wickert is also a commercial fiction author and his latest political thriller, Dark Redemption (Tudor Publishers), is available on Amazon.com.
Licensed in both Texas and Wisconsin, Mr. Wickert is double board-certified in both personal injury law and civil trial law by the Texas Board of Legal Specialization. He is also nationally certified as a Civil Trial Advocate by the National Board of Trial Advocacy (NBTA), for whom he has both written and graded the product liability questions contained on the NBTA national certification exam taken by trial lawyers around the country. For nearly twenty-five years, he has also served as an expert witness on subrogation and insurance related issues and has been consulted by insurance carriers, lawyers, and legislative bodies from several states. He is a licensed arbitrator and has attended more than 750 mediations in more than 30 different states. He is one of only a few lawyers to have ever represented a client before the United States Supreme Court on a subrogation issue, and was named one of Law & Politics and Milwaukee Super Lawyers magazine's Super Lawyers for 2005, 2006, and 2008. For a complete resume on Gary L. Wickert, see Appendix A-13 of this book.
