DiCarlo v. Suffolk Construction Co., Inc.

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13-P-388 Appeals Court

ROBERT M. DiCARLO & another1 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.

1

Deborah DiCarlo.

2

Walter Brook Crossing, LLC, is also a defendant.

Professional Electrical Contractors of Connecticut, Inc., is a

third-party defendant. Twin City Fire Insurance Company is an

interested party and the appellee.

2

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 appeal3 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

3

Leave to file an interlocutory appeal was granted by a

single justice of this court.

4

The Supreme Judicial Court denied further appellate review

in Curry. See 461 Mass. 1103 (2011).

3

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. 152, § 15] and

petition in light of the Curry decision.

"Henceforth § 15 petitions submitted to the industrial

accident board for approval should specify the amount

allocated to compensate the employee for her/his conscious

pain and suffering, as well as any amount(s) recoverable in

damages for the loss of consortium claims of family

members. Amounts so allocated are beyond the reach of the

workers' compensation insurer's lien, and therefore are not

subject to offset against the employee's entitlement to

c. 152 benefits."

See Nason, Koziol, and Wall, Workers' Compensation § 27.12 at

100 & n.9.50 (Supp. 2014) ("The Massachusetts Appeals Court has

clearly settled this debate, holding [in Curry] that the double

recovery [prohibition] is limited to compensation payments;

therefore, the insurer cannot receive reimbursement from that

portion of the third party recovery attributable to payment for

the employee's conscious pain and suffering.") The settled

5

In denying the amended petition, the judge relied on the

distinction that Curry was a wrongful death case, a distinction

that we reject.

4

interpretation of a statute "ought not to be lightly disturbed.

Stability of interpretation is signally desirable in [such]

matters." Commissioner of Rev. v. Oliver, 436 Mass. 467, 475

(2002), quoting from Welch v. Boston, 211 Mass. 178, 185 (1912).6

As further addressed herein, Curry is in accord with Eisner

v. Hertz Corp., 381 Mass. 127, 133 (1980) (holding that a § 15

lien did not apply because that section does not "require

reimbursement for an injury not compensable under c. 152");

Hultin v. Francis Harvey & Sons, Inc., 40 Mass. App. Ct. 692,

695 (1996) (a claim for loss of consortium is "entirely

independent and distinct from the personal injury claims of the

employee," which would be subject to a § 15 lien); and Wilson's

Case, 67 Mass. App. Ct. 1, 7-8 (2006) (§ 15 does not apply to

settlement payments based on loss of consortium claim).

Accordingly, we vacate the order denying the amended

petition for settlement and remand the case to the Superior

Court for entry of an order consistent with this opinion.7

6

We note that the Legislature is "presumed to be aware of

the manner in which its statutes have been interpreted." Boyle

v. Weiss, 461 Mass. 519, 524 (2012), quoting from Commonwealth

v. Wynton W., 459 Mass. 745, 751 (2011). Our research into

legislative activity post-Curry indicates that no bills were

filed to amend G. L. c. 152, § 15, in response to this court's

holding in Curry regarding allocations for independent

noneconomic-based causes of actions, such as for pain and

suffering.

7

We acknowledge the amicus brief submitted by the National

Association of Subrogation Professionals.

5

1. Background. The essential facts are not in dispute.

On October 11, 2004, Robert M. DiCarlo (DiCarlo) suffered

serious personal injuries as a result of an accident while

working as an electrician at a construction site. He was out of

work for two and one-half years and collected workers'

compensation benefits for his medical expenses ($48,431.16) and

lost wages ($233,387.95) from his employer's insurer, Twin City

Fire Insurance Company (insurer). In March, 2007, pursuant to

G. L. c. 152, § 15, DiCarlo filed a third-party lawsuit against

the general contractor and owner of the property where the

injury occurred (Suffolk Construction, Inc., and Walker Brook

Crossing, LLC). DiCarlo amended his complaint, without

opposition, to add a loss of consortium claim on behalf of his

wife, Deborah. The parties participated in mediation and

settled DiCarlo's lawsuit for $100,000, which was to be paid by

the insurer of the defendants and third-party defendant.8

The Superior Court judge conducted an evidentiary hearing

on DiCarlo's amended petition for settlement and allowed counsel

for the parties to inquire of both DiCarlo and his wife.

DiCarlo also submitted certified copies of his medical records.

G. L. c. 233, § 79G. The judge made detailed findings of fact

8

Pursuant to court order, this agreed-upon settlement

amount was placed in a trust account. As a consequence, the

defendants and third-party defendant were relieved of the

necessity of any involvement in this appeal.

6

in which she found DiCarlo and his wife "to be credible in every

particular."9 The judge found that the evidence supported

DiCarlo's proposed thirty-five percent allocation of the

settlement funds as compensation for his pain and suffering and

thirty-five percent allocation as compensation for his wife's

claim for loss of consortium.10 However, the judge went on to

conclude that the proposed allocation to DiCarlo of thirty-five

percent of the settlement proceeds for pain and suffering was

9

The judge found that DiCarlo's pain was "relentless" and

"[o]n a scale of one to ten, he placed his pain level at plus

ten all the time. He could not work. He became moody and

irritable . . . . He required considerable pain medication

which made him somewhat incoherent. Sexual intimacy became

impossible [and] the injury harmed the marriage." The judge

also found that DiCarlo "had a herniated L2-3 disc with L2 nerve

root compression; he required considerable pain management.

This court credits the complaints by [DiCarlo] of constant pain

and interference with quality of life that are consistent with

and corroborated by the medical record. Moreover, each member

of this couple suffered near-equally as a result of [DiCarlo's]

injury."

10

DiCarlo's settlement proposal requested that

approximately thirty-five percent of the settlement be awarded

to him for his pain and suffering, approximately thirty-five

percent be awarded to his wife for her loss of consortium, and

approximately thirty percent to the insurer to satisfy its lien,

with each portion again assigned a pro rata share of the

attorney's fees and costs. The insurer proposed that it should

receive no less than ninety percent of the settlement and that

no more than ten percent be awarded to DiCarlo's wife if the

court found her claim for loss of consortium supported by the

evidence.

7

subject to the insurer's lien under G. L. c. 152, § 15.11

Approval of the proposed settlement was consequently denied.

2. Discussion. On appeal, DiCarlo contends that this case

is controlled by Curry. We agree. As previously referenced, in

Curry this court held that damages for conscious pain and

suffering recovered by the estate of a deceased worker, and

damages for loss of consortium recovered by the decedent's

family members in a third-party action, were not reimbursable to

the insurer under G. L. c. 152, § 15, because conscious pain and

suffering and loss of consortium are not compensable injuries

under G. L. c. 152. Curry, supra at 594-595. Accordingly, an

insurer's lien under G. L. c. 152, § 15, did not reach a claim

for loss of consortium recovered in a third-party action because

such claims were "entirely independent and distinct from the

personal injury claims of the employee." Id. at 595, quoting

from Hultin v. Francis Harvey & Sons, Inc., 40 Mass. App. Ct. at

695. The Curry court made it clear that it was the distinction

between the types of damages an injured employee can recover

under G. L. c. 152 (lost wages and medical expenses) compared to

what can be recovered in a tort action (loss of earning

capacity, medical expenses, and pain and suffering) that was

11

The judge also ruled that an allocation of thirty-five

percent of the settlement proceeds resulting from the third-

party action to the wife for her consortium claim was not

subject to the insurer's lien under G. L. c. 152, § 15. This

aspect of the judge's decision has not been not challenged.

8

determinative of the scope of an insurer's lien under G. L. c.

152, § 15. See Curry, supra at 596-597 & n.7. The Curry

decision relies on the following precedent, which is summarized

in the decision as follows:

"In Eisner v. Hertz Corp., supra at 129, the Supreme

Judicial Court was charged with answering the following

certified question from the United States Court of Appeals

for the First Circuit: 'Whether a workmen's compensation

insurer is entitled to reimbursement under [§ 15] of the

portion of the net proceeds of a third party settlement for

the loss of consortium of the widow.' The court answered

in the negative, observing that '[s]ection 15 does not

require reimbursement for an injury not compensable under

c. 152. The wife received no separate compensation

payments for loss of consortium. Nowhere does c. 152

suggest that loss of consortium is a compensable injury.'

Id. at 133-134. See Hultin v. Francis Harvey & Sons, Inc.,

supra at 695 ('claims of the spouse of an injured employee

for loss of consortium . . . are entirely independent and

distinct from the personal injury claims of the employee');

Wilson's Case, 67 Mass. App. Ct. 1, 7-8 (2006) (settlement

payments based on claimant's loss of consortium claim 'are

related to the claimant's own independent loss stemming

from the workplace incident. As such, the settlement

payments are not subject to a lien by the employer, and

G. L. c. 152, § 15, which is designed to guard against

double recovery by an employee or dependent, does not

apply')."

Curry, supra at 595-596.

The holding in Curry is consonant with the statutory

purposes underlying the workers' compensation laws in G. L.

c. 152, which is to protect workers. This principle has been

consistently reaffirmed by the Supreme Judicial Court:

"It has long been recognized that the Act 'was enacted as a

"humanitarian measure" in response to strong public

sentiment that the remedies afforded by actions of tort at

common law did not provide adequate protection to workers.'

9

It is designed to provide financial compensation for the

impairment of an injured worker's earning capacity. The

Act is 'a remedial statute and should be given a broad

interpretation, viewed in light of its purpose and to

"promote the accomplishment of its beneficent design.'"

Further, it must be analyzed 'as a whole . . . so that the

various portions taken together shall constitute a

harmonious and consistent legislative enactment.'"

Spaniol's Case, 466 Mass. 102, 106-107 (2013) (citations

omitted).

Thus, we follow Curry as the binding precedent of this

court and hold in this case that DiCarlo's compensation for pain

and suffering was not subject to the G. L. c. 152, § 15,

insurer's lien.

The order denying the amended petition for settlement is

reversed, and a new order shall enter consistent with this

opinion.

So ordered.

AGNES, J. (concurring in the result). I agree with the

majority's decision to rely on Curry v. Great Am. Ins. Co., 80

Mass. App. Ct. 592 (2011) (Curry), and to hold that the workers'

compensation insurer's lien under G. L. c. 152, § 15, does not

reach the damages for pain and suffering recovered by the

injured worker in a third-party action. However, my concurrence

is based solely on the doctrine of stare decisis. In my view, a

panel of this court should follow a recently published decision

of the court on a question of statutory interpretation in the

absence of any intervening action by the Legislature or a

decision by the Supreme Judicial Court that overrules or calls

into question the prior Appeals Court opinion. I write

separately because, based on earlier decisions by the Supreme

Judicial Court, I have reservations whether Curry was decided

correctly. Because this case involves an issue of considerable

importance to the administration of justice, an outline of the

reasons why a different outcome in this case should be reached

may assist the Supreme Judicial Court or the Legislature.

Discussion. 1. Statutory framework. The appropriate

starting point is the statute, bearing in mind that when the

words are plain and unambiguous, our sole function is to enforce

the law as written. See Commonwealth v. Boe, 456 Mass. 337, 347

(2010).

2

General Laws, c. 152, § 15, as appearing in St. 1991,

c. 398, § 39, provides in pertinent part as follows:

"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."

(Emphasis added.)

The language "[t]he sum recovered shall be for the benefit of

the insurer," is not otherwise qualified or limited in § 15 or

elsewhere in G. L. c. 152. This language has been part of our

workers' compensation law since it was enacted in 1911. Rhode

v. Beacon Sales Co., 416 Mass. 14, 17 (1993) (Rhode). The

phrase "the sum recovered" does not differentiate between the

types of damages that may be recovered by or on behalf of an

employee in a third-party action. In Rhode, the court observed

that the language was designed to establish "an insurer's right

to full reimbursement of benefits." Ibid.

It is also instructive to examine the cases prior to Curry

which have interpreted § 15, but which are not considered and

3

distinguished in Curry. In Rhode, an employee obtained a

recovery from the tortfeasor in excess of the workers'

compensation benefits he had received. He argued that because

"he was recovering only a fraction of the value of his

injuries," id. at 16, from the tortfeasor, the workers'

compensation insurer was not entitled to the full amount of the

lien. He claimed that the Superior Court judge could make an

equitable allocation between the employee and the insurer in

approving a settlement under § 15 based on the most recent

amendment to the statute.1 Id. at 15-16. The court rejected

this argument and held that "a judge has no discretionary power

to review and to determine the fair allocation of proceeds

between an insurer and the insured." Id. at 18-19. Instead,

1

Statutes 1991, c. 398, § 39, added the following language

to G. L. c. 152, § 15: "At such hearing the court shall inquire

and make a finding as to the taking of evidence on the merits of

the settlement, on the fair allocation of amounts payable to the

employee and the employee's spouse, children, parents and any

other member of the employee's family or next of kin who may

have claims arising from the injury for which are payable, under

this chapter in which the action has been commenced after an

opportunity has been afforded both the insurer and the employee

to be heard on the merits of the settlement and on the amount,

if any, to which the insurer is entitled out of such settlement

by way of reimbursement, and on the amount of excess that shall

be subject to offset against any future payment of benefits

under this chapter by the insurer, which amount shall be

determined at the time of such approval. In determining the

amount of 'excess' that shall be subject to offset against any

future compensation payment the board, the reviewing board, or

the court in which the action has been commenced shall consider

the fair allocation of amounts payable to and amongst family

members who may have claims arising from the injury for which

said compensation is payable."

4

the Supreme Judicial Court explained that the only allocation

that § 15 allows is between the employee and his family members.

Except for that allocation, "[u]ntil an 'excess' recovery

exists, the entire recovery is for the insurer." Id. at 19

(emphasis added). The court observed that "this court has

consistently recognized an insurer's right to full reimbursement

of benefits," and that the 1991 amendment "did not in any way

alter this language." Id. at 17. See Dufresne's Case, 51 Mass.

App. Ct. 81, 85-86 (2001) (noting that "the purposes of the

offset are first to preclude double recovery by the employee

. . . and, second, to maintain the policy of reimbursement for

the compensation insurer").2 Contrast G. L. c. 152, § 46A (as to

liens held by health insurers and medical providers, the

Department of Industrial Accidents may compromise their claims

2

Curry appears to premised on the notion that the goal of

preventing an injured employee from receiving a double recovery

in a third-party action under § 15 is maintained by shielding

the employee's recovery for pain and suffering from the reach of

the lien because a recovery for pain and suffering is not

permitted in an action under G. L. c. 152. See Curry, supra at

595. However, the bar against permitting double recovery is

defined more broadly to mean that "an employee should not

recover both workmen's compensation benefits and damages at law

for the same injury." Eisner v. Hertz Corp., 381 Mass. 127, 131

(1980), quoting from McDonald v. Employers' Liab. Assur. Corp.,

288 Mass. 170, 174 (1934). When an injured employee receives

compensation under G. L. c. 152 and then brings a third-party

action, whether the recovery segregates the award of damages for

loss of earning capacity, medical expenses, and pain and

suffering or not, there are two recoveries for the same injury.

Under § 15, it is only when the recovery in the tort action is

"in excess" of the compensation paid by the insurer under G. L.

c. 152 that it is received by the employee.

5

to the proceeds of a third-party action and assign priority to

the recovery by the injured employee).

The interpretation of § 15 set forth in Rhode was followed

in Lane v. Plymouth Restaurant Group, 440 Mass. 469 (2003)

(Lane), where the Supreme Judicial Court stressed that

reimbursement of the insurer was a primary goal of § 15 and held

that at the hearing to approve a settlement of a third-party

tort action in which a workers' compensation insurer has a lien,

a judge must allow the workers' compensation insurer to present

evidence regarding the fair allocation of settlement proceeds

among the insurance beneficiaries. See id. at 472-473.3

Consideration of Bongiorno v. Liberty Mut. Ins. Co., 417

Mass. 396 (1994) (Bongiorno), raises additional concern about

the reasoning in Curry. In Bongiorno, the issue was whether a

workers' compensation insurer was entitled to a lien on a

settlement obtained in a legal malpractice action, where the

employee had sued his lawyers for malpractice after they had

failed to timely serve a complaint against a third-party

tortfeasor who was allegedly responsible for the employee's

3

In Lane, the dispute was over the allocation of the

proceeds of a third-party action in which the judge approved a

settlement in the amount of $237,500, by allocating only ten

percent toward the decedent's personal injury, and thus

recoverable by the insurer, with the remainder allocated to

cover claims for loss of consortium and negligent infliction of

emotional distress on the part of the decedent's surviving

spouse and four sons.

6

workplace injury. Id. at 397-399. The employee maintained that

the § 15 lien did not apply to the settlement proceeds resulting

from the malpractice lawsuit because otherwise the injured

employee would not be made whole. Id. at 402. The Supreme

Judicial Court rejected this argument and concluded that the

purpose of § 15 is not to ensure that plaintiffs are fully

compensated, but rather to provide workers' compensation

insurers with the first priority in the allocation of third-

party recoveries:

"In enacting G. L. c. 152, the Legislature chose to favor

certainty and relative administrative convenience over the

opportunity for an injured party to obtain full redress in

court. It may indeed be the case, as the plaintiffs argue,

that they have not been fully compensated even by the total

of the benefits received under G. L. c. 152 and the

settlement with the [lawyers]. Nevertheless, we think that

the intent and purpose of G. L. c. 152 are better served by

treating the malpractice recovery as a third-party recovery

subject to Liberty Mutual's lien under § 15. The

malpractice recovery serves to compensate indirectly for

the same injuries that the workers' compensation benefits

paid by Liberty Mutual compensated directly. To enforce

the legislative intent of reimbursing workers' compensation

insurers before awarding full tort damages to an injured

worker, the malpractice recovery should be subject to

Liberty Mutual's claim."

Id. at 402.4

4

Additional cases decided by the Supreme Judicial Court and

cited by the insurer make the same point. See, e.g., Meehan's

Case, 316 Mass. 522, 523 (1944) (under § 15, insurer "was

entitled to reimburse itself for compensation paid to the

employee out of any amount that it might recover" from a

tortfeasor); Richard v. Arsenault, 349 Mass. 521, 524 (1965)

(under § 15, "any damages awarded as a result of the third party

action must first be applied to reimburse the insurer for the

7

The reasoning in Curry is also problematic in light of the

Legislature's use of the word "injury" in that portion of the

statute quoted above in the text. The word "injury" in § 15 and

throughout G. L. c. 152 as a whole appears to refer to the

personal injury sustained by the employee as a result of the

work-related accident. Section 15 begins with the phrase "the

injury for which compensation is payable," using the term

"injury," I believe, to refer to the personal injury, and the

term "compensation" to refer to the wage benefits and medical

expenses payable under G. L. c. 152. Section 18, which pertains

to independent contractors and subcontractors, further explains

that workers' compensation benefits and medical expenses are not

the "injury" but rather are paid "on account of any injury to

the employee." G. L. c. 152, § 18. Additional sections of

G. L. c. 152 use the term "injury" in a manner that suggests it

refers to the personal injury suffered by the employee and not

compensation paid"); Boardman's Case, 365 Mass. 185, 193 (1974)

(under § 15, "it is only from the balance of the [settlement]

proceeds, after insurer's reimbursement including reimbursement

of medical costs, that the employee secures any recovery"); Pina

v. Liberty Mut. Ins. Co., 388 Mass. 1001, 1002 (1983) ("§ 15

obligates [the employee] to pay over to the [workers'

compensation] insurance carrier, from the judgment, the benefits

paid" by the insurer).

8

the category of damages awarded on account of an injury

resulting from the tortious conduct of a third party.5

Legislative recognition of an insurer's right to be made

whole for amounts it has paid to an injured employee in workers'

compensation benefits before the employee retains any portion of

an award of damages or settlement in a third-party action is

grounded in equitable considerations. By electing to receive

workers' compensation benefits, an injured employee is relieved

of the need to bring a lawsuit, to prove negligence, and to risk

suffering the consequences of comparative negligence and a

reduction or loss of the right to recover any damages which may

result if a tort action was brought instead of a claim for

benefits under G. L. c. 152. See Richard v. Arsenault, 349

Mass. 521, 524 (1965).6 Although there is an equitable argument

5

See G. L. c. 152, § 1 (referring repeatedly to a specific

"date of injury"); § 1(7A) (defining "personal injury"); § 7

(referring to a "first report of injury" and "benefits for the

alleged injury"); § 12(1) (providing for proceedings in "the

county in which the injury occurred"); § 16 (referring to

whether employee's "incapacity or death is or was the result of

the injury for which he received compensation"); § 23 (referring

to releases of claims "arising from the injury"). See also

McHoul, petitioner, 445 Mass. 143, 154 (2005), cert denied, 547

U.S. 1114 (2006) ("The term 'injury' has not been defined in the

statute, but the word is hardly opaque. Webster's Third New

Int'l Dictionary 1164 (1993) defines 'injury' in its most common

sense to mean 'an act that damages, harms, or hurts: an unjust

or undeserved infliction of suffering or harm: wrong.'").

6

In Richard v. Arsenault, supra, the Supreme Judicial Court

explained that § 15's bar against an employee's double recovery

is another way of providing that the insurer is entitled to

9

to be made on behalf of the employee, namely, that pain and

suffering damages recovered in a third-party action provide

relief that is not available under G. L. c. 152, prior to Curry

this view did not animate the discussion in the cases

interpreting § 15. Instead, the Supreme Judicial Court has

written that the goal of § 15 is to provide workers'

compensation insurers with first priority in the allocation of

third-party recoveries. Bongiorno, supra.

Another problem with the reasoning in Curry is that it

requires that the phrase "the sum recovered," as it appears in

§ 15, to refer not to the entire amount recovered in the third-

party action, nor to the "gross sum received in payment for the

injury," as the statute provides, but instead to some lesser

amount of that "gross sum" consisting exclusively of damages

awarded for lost wages and medical expenses. This requires a

satisfy its lien for compensation benefits paid out of the

proceeds of a third-party action before the employee is entitled

to anything. "The 'claimant should not be allowed to keep the

entire amount both of his compensation award and of his common-

law damage recovery. The obvious disposition of the matter is

to give the employer so much of the negligence recovery as is

necessary to reimburse him for his compensation outlay, and give

the employee the excess. This is fair to everyone concerned:

the employer, who, in a fault sense, is neutral, comes out even;

the third person pays exactly the damages he would normally pay,

which is correct, since to reduce his burden because of the

relation between the employer and employee would be a simple

windfall to him which he has done nothing to deserve; and the

employee gets a fuller reimbursement for actual damages

sustained than is possible under the compensation system alone.'

Larson, Workmen's Compensation Law, § 71.20. This principle is

implicit in § 15." Id. at 524.

10

strained reading of the statute's text. It is based on

speculation about a distinction that the Legislature could have

made between economic and noneconomic damages, but that does not

appear in the statute. See Saab v. Massachusetts CVS Pharmacy,

LLC, 452 Mass. 564, 572 (2008) ("[I]t is not the role of courts

to create a more comprehensive or logical system of

compensation. . . . That is a task for the Legislature"). In

order to read such a distinction into the law we would have to

disregard the Legislature's specific direction to courts about

how to read statutes, see G. L. c. 4, § 6, Third,7 as well as our

own canons of construction. "[T]he statutory language itself is

the principal source of insight into the legislative purpose."

Hoffman v. Howmedica, Inc., 373 Mass. 32, 37 (1977).

While the law in other States relating to the scope of the

insurer's lien is not a certain guide, it is noteworthy that a

majority of courts in other jurisdictions with statutes

comparable to § 15 include damages for pain and suffering

recovered in a third-party action within the scope of the

insurer's lien. See 6 Larson's Workers Compensation Law

§ 117.01[1] and accompanying digest (2014 ed.) (collecting

7

General Laws c. 4, § 6, Third, provides that "[w]ords and

phrases shall be construed according to the common and approved

usage of the language . . . ." See Burke v. Chief of Police of

Newton, 374 Mass. 450, 452 (1978) (words in a statute should be

given their ordinary meaning unless there is a clear indication

to the contrary).

11

cases). See also Wickert, Workers' Compensation Subrogation in

all 50 States § 3.4 (5th ed. 2012); and 1 Modern Workers

Compensation 103:57 (Clark Boardman Callaghan 2014).