SJC Ruling Upholds “Pain and Suffering Allocations”

SJC Ruling Upholds “Pain and Suffering Allocations”         

          The Massachusetts Supreme Judicial Court issued its long awaited decision on February 12, 2016 in Robert DiCarlo v. Suffolk Construction Co., Inc. The SJC held that “pain and suffering” damages recovered by an injured plaintiff (in a third-party personal injury case) are not subject to a Workers’ Compensation insurer’s lien.

          The Court has concluded that a workers’ compensation insurer pays benefits for lost wages and medical expenses only, not “pain and suffering” damages and, therefore, it is not entitled to be reimbursed for something not covered by the WC Act.

         The SJC’s decision now makes clear that “pain and suffering” allocations, much like Eisner loss of consortium allocations, are here to stay and must be dealt with strategically by Workers’ Compensation insurers and self-insurers.

          The SJC has made it clear by this decision that it is not permitting employees to “double dip” and receive workers’ compensation benefits and at the same time deprive an insurer of its lien by allocating money away from the statutory lien.

 TKCK Will Help You Maximize Your WC Lien Recoveries

          Although we anticipated that the SJC was likely to uphold the constitutionality of Curry “pain and suffering” allocations, TKCK has been successfully challenging the reasonableness of injured plaintiff’s “pain and suffering” and “loss of consortium” allocations in the lower courts and DIA.  These allocations and determinations must be approved by the trial judge on a case-by-case basis to ensure that the proposed allocations are reasonable.

            TKCK believes that the SJC decision in DiCarlo – despite upholding “pain and suffering” allocations – may actually assist WC insurer’s in demonstrating that certain allocations must be rejected because they are unreasonable and overreach by attempting to undercut the WC lien. The DiCarlo Court concluded by noting that “a settlement amount allocated entirely or in large part to pain and suffering will ‘be eyed by the court with a healthy dose of skepticism.’"

            Therefore, any allocation must be viewed for its reasonableness and is subject to challenge by insurers at a Section 15 hearing, either before the DIA or the Superior Court.

             For assistance with lien recoveries, subrogation claims and general liability matters, please contact Attorneys Vincent Tentindo ( or Matthew Slater (