Avenues of Compensation for Those Injured While Working for Uninsured Employers (Part 2)

PART 2 of 2

Part 1 of this blog, discussing workers’ compensation benefits available to those who have been injured while working for an uninsured employer in Massachusetts was published on October 18.  Because workers’ compensation only provides limited benefits and often times does not provide adequate compensation for the harm caused by a workplace accident, it is important to thoroughly investigate all possible civil remedies which can provide additional compensation not provided by workers’ compensation laws, such as pain and suffering.

Civil/Third Party Claims

If a general contractor or negligent third party with insurance coverage or reachable assets cannot be identified, the injured worker has the right to recover full tort damages directly from his uninsured employer.  Once it has been determined that the employer did not have workers’ compensation coverage on the date of injury, a plaintiff seeking a tort recovery against an uninsured employer must first establish:

1)         the employee-employer relationship,

2)         the plaintiff was injured, and

3)         the injury arose out of and in the course of employment.

See. M.G.L. c. 152, §25A; G.L. c. 152, § 66.  

If these three elements can be established, the uninsured status of the employer gives rise to a civil action and the uninsured employer cannot successfully assert the defenses of comparative negligence, assumption or risk, negligence of a co-employee or that the employee’s injury did not result from the negligence or other fault of the employer.  See. M.G.L.A. Chapter 152 §66.  Essentially, as long as the plaintiff can establish that the injury arose out of and in the course of his or her employment with the employer, and that the employer did not carry workers’ compensation insurance on the date of the injury, then the plaintiff has a strict liability claim for damages.  Recovery is not limited to what the plaintiff would have recovered in workers’ compensation benefits had the employer been insured.  The plaintiff may recover full tort damages.  O’Dea v. J.A.L., Inc., 30 Mass.App.Ct. 449 (1991); LaClair v. Silberline Manufacturing Co., 379 Mass. 21, 26 (1979).    It should be noted that very few such civil claims are worth pursuing, for the simple reason that most employers who failed to carry workers’ compensation coverage have reachable assets to satisfy a judgment.

Since most uninsured employers do not have any reachable assets, most civil recoveries are achieved via third party negligence claims against a general contractor (typically in the construction site accident setting) or another party who may have caused or contributed to the injuries (such as the negligent operator of a motor vehicle or manufacturer of a defective product).  If a general contractor or other negligent third party can be identified, the injured worker may assert third party negligence claims against those entities.  It is important to note that the Massachusetts Supreme Judicial Court has recently held that receipt of workers’ compensation benefits from a third party general contractor (pursuant to M.G.L.A. Chapter 152 §18) does not allow the general contractor to claim immunity from third party liability claims by asserting the exclusive remedy provision of the workers’ compensation statute.  Wentworth v. Becker Custon Building Ltd., 459 Mass. 768 (2011).

As with all workplace injury claims where workers’ compensation benefits have been paid, the entity that has paid benefits has subrogation rights against any monetary recoveries received as a result of any civil claims.  See. M.G.L.A. Chapter 152 Section 15.