DiCarlo, et al. v. Suffolk Construction Co., Inc., et al. (Lawyers Weekly No. 11-142-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 13-P-388 Appeals Court ROBERT M. DiCARLO & another[1] vs. SUFFOLK CONSTRUCTION CO., INC., & others.[2] No. 13-P-388. Suffolk. December 10, 2013. – November 6, 2014. Present: Berry, Meade, & Agnes, JJ. Workers’ Compensation Act, Action against third person, Settlement agreement, Insurer. Lien. Civil action commenced in the Superior Court Department on March 29, 2007. A petition for settlement was heard by Frances A. McIntyre, J. A proceeding for interlocutory review was heard in the Appeals Court by Carhart, J. Alice J. Klein for the plaintiffs. Wystan M. Ackerman for Twin City Fire Insurance Company. Marie Cheung-Truslow, for National Association of Subrogation Professionals, amicus curiae, submitted a brief. BERRY, J. This appeal involves a workers’ compensation insurer’s lien under G. L. c. 152, § 15, and poses the question whether, in cases where an injured employee receives workers’ compensation benefits and then sues and successfully negotiates the allocation of noneconomic damages to the employee in a lawsuit against a third-party tortfeasor, the § 15 lien attaches to the noneconomic damage recovery, such as for pain and suffering. We conclude that this interlocutory appeal[3] from an order denying the plaintiff’s amended petition for settlement is controlled by this court’s previous decision in Curry v. Great Am. Ins. Co., 80 Mass. App. Ct. 592 (2011) (Curry).[4] Curry held that an insurer’s lien under G. L. c. 152, § 15, did not reach the settlement proceeds of an employee’s third-party action that were allocated to the worker for his pain and suffering and to his spouse for loss of consortium. The fact that Curry was a wrongful death action brought by the estate of a deceased worker, and that this case is a tort action brought by an injured worker, does not, we believe, provide a meaningful basis on which to distinguish Curry, and not apply its rationale.[5] As the Curry court pointed out, a deceased worker’s legal representative “stands in the shoes of the deceased” worker for purposes of § 15. Curry, supra at 595 & 597 n.7. We begin by noting that the holding in Curry has been followed by the Department of Industrial Accidents. See Circular Letter No. 341, issued by the department on April 12, 2012, which states, in pertinent part: “The department is presently revising its § 15 interactive calculator [for allocations under G. L. c. […]