When someone gets hurt at work, the employer’s workers compensation automatically pays medical costs and a large fraction of lost wages – no matter whose fault caused the work injury. Due to a 100 year old legislative trade-off, this automatic but limited recovery, cloaks the employer with immunity from lawsuits from their employees. Comp collecting employees can’t sue their employers.

Those employees can sue anyone else responsible for the work injury (other than the employer) for full recovery of pain and suffering and all damages allowed under law in Court. With a payout in these “3rd party” suits, the workers compensation insurance has to be paid back what it paid out.

A recent Massachusetts Supreme Judicial Court decision made clear that workers need not turn over the “pain & suffering” or the “loss of consortium” part of their recovery to the Worker’s Compensation insurer.

Worker’s compensation provides what has been called limited solace because in the Worker’s Compensation insurance system, there is no recovery for pain and suffering. These damages often are the biggest part of an award or settlement of a “3rd party” court case. Similarly with a spouse’s loss of consortium, worker’s compensation does not cover it, and when those damages are awarded in a 3rd party case, the reimbursement of worker’s compensation costs does not include that kind of payout.

Hurt workers who sue parties other than their employer will have to repay to the workers compensation insurer from whatever they get from the 3rd party, lost wages and medical bills – not loss of consortium damages and not pain and suffering awards or settlements.