MORE INFORMATION:

While I was on my way to see a customer, my car was struck in the rear by an SUV.  I was stopped at red light.  The car was completely totaled.  The police and ambulance arrived soon after the crash and I was taken to the hospital.  I had multiple injuries, including a herniated disc in my back.  I was in the hospital for a few days before being discharged.  I was diligent about seeing my doctors and doing physical therapy.  I have not felt the same since the accident, however, and my doctors told me that while I can return to work, I will have to “take it easy” and not lift anything heavier than 15 pounds and this condition is likely to be permanent and may worsen as I get older.  What are my legal rights?

ATTORNEY ANSWER:

This problem presents two claims.  One is for an injury on the job because the employee was on his way to see a customer.  This is referred to as the “coming and going rule” in workers’ compensation and permits the injured employee to get paid for his medical bills and a percentage of his lost wages while disabled.  The second claim is for pain and suffering against the driver of the SUV who caused the accident.  Since the underlying claim is for workers’ compensation, the employee’s Personal Injury Protection (Pip) will not apply because the medical bills and lost wages will be covered by workers’ compensation.  If the workers’ compensation carrier refuses to pay, however, this can lead to contentious litigation at the Massachusetts Department of Industrial Accidents and requires forceful representation by the employee’s attorney.

Once the workers’ compensation claim is successfully made, the employee can make the claim for pain and suffering, which includes periods of total and partial disability and permanent loss of function.  This is also known as a Bodily Injury (BI) claim.  The attorney representing the employee can try to negotiate a settlement of the BI claim with the driver of the SUV’s insurance company, or the attorney may have to file suit and go to trial to get a successful resolution of the BI claim.

If there is a settlement of the BI claim, the injured employee’s proceeds are the net after attorney’s fees, file expenses and the total of the medical bills and lost wages paid by the workers’ compensation insurance carrier.  This is known as the “Hunter Offset.”  In other words, the employee cannot collect twice for his medical bills and lost wages from both the workers’ compensation claim and the Bodily injury claim.  He must repay a portion of the net Bodily Injury settlement to the workers’ compensation insurance carrier.  This gets approved by what is known as a Section 15 Petition by an Administrative Judge from the Department of Industrial Accidents or by a Superior Court Judge from the Trial Court.

After the case is settled, the employee may be responsible for paying for future medical bills out of pocket from the Bodily Injury “surplus,” along with the workers’ compensation carrier.  Careful planning is needed by both the injured employee and his attorney to make sure that there will be sufficient funds to cover future contingencies.

Attorney David Rubin is a Greater Boston Personal Injury attorney and provides  representation to clients in communities such as Boston, Boston MetroWest, Framingham, Dedham, Marlborough, Natick, Needham, Newton, Waltham and Worcester.

David L. Rubin, Attorney at Law
Greater Boston Personal Injury Attorney
929 Worcester Road
Framingham, MA 01701
Telephone: (508) 875-9797
Boston: (617) 451-0707
Fax: (508) 820-1560