In a decision handed down yesterday, the Appeals Court of Massachusetts upheld the vitality of Curry v. Great Am. Ins. Co., 954 N.E.2d 580 (Mass. App. Ct. 2011), which limits workers’ compensation insurers’ lien recovery rights. Under Curry, damages for conscious pain and suffering as well as for loss of consortium are not reimbursable to the insurer under G.L. c. 152, § 15.
Such injuries, according to the Curry court, “are not compensable injuries,” and “entirely independent and distinct from the personal injury claims of the employee.” For the court in Curry, “the primary goal of the workers’ compensation statute is wage replacement,” which would obviously prevent an insurer’s lien from attaching to an employee’s damages for pain and suffering, among other injuries.
The Appeals Court in DiCarlo v. Suffolk Const. Co., 2013 WL 9854065 (Mass. App. Ct. Nov. 6, 2014) declared that Curry continues to be the “binding precedent” in Massachusetts, and, as such, “compensation for pain and suffering [is] not subject to the. . . insurer’s lien.”
In DiCarlo, the injured worker 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. In March, 2007, pursuant to G.L. c. 152, § 15, the worker filed a third party action against the general contractor and owner of the property where the injury occurred.
The worker amended his complaint to add a loss of consortium claim on behalf of his wife. The parties participated in mediation and settled the worker’s lawsuit for $100,000, which was to be paid by the insurer of the defendants and third party defendant. Since the parties in DiCarlo reached a settlement, the lower court judge conducted an evidentiary hearing in which she allowed counsel to inquire of the worker and his spouse, as to their claims for pain and suffering and loss of consortium, respectively.
The worker’s settlement proposal requested that approximately 35 % of the settlement be awarded to him for his pain and suffering, approximately 35 % be awarded to his wife for her loss of consortium, and approximately 30 % to the insurer to satisfy its lien, with each portion again assigned a pro rata share of the attorney’s fees and costs. By contrast, the insurer proposed that it should receive no less than 90 % of the settlement and that no more than 10 % be awarded to the worker’s wife if the court found her claim for loss of consortium supported by the evidence. The lower court judge in DiCarlo made detailed findings of fact in which she found the worker and his wife “to be credible in every particular,” and sided with the worker’s proposed allocation of the third party settlement proceeds.
For the time being, Curry remains the law of Massachusetts. In the context of a settlement, this means that workers’ compensation insurers must move for a Superior Court judge to conduct an evidentiary hearing, just like in DiCarlo, to determine the merits of an injured worker’s proposed allocation limiting the pool of funds to which an insurer’s lien may attach.
Still, a rift in the Massachusetts court system appears to be growing increasingly wider, manifest in the impassioned concurrence in DiCarlo. Agreeing with the majority’s opinion in DiCarlo, “based solely on the doctrine of stare decisis,” Judge Peter W. Agnes Jr. expressed concerns about whether Curry was decided correctly. To support his position that “the entire recovery is for the insurer,” Judge Agnes directed to the DiCarlo majority’s attention a slew of Massachusetts Supreme Judicial Court opinions decidedly inconsistent with Curry.
 DiCarlo v. Suffolk Const. Co., 2013 WL 9854065 (Mass. App. Ct. Nov. 6, 2014).
 954 N.E.2d at 582-84.
 Id. at 583-84 (citation and internal quotation omitted).
 Id. at 584 (citation omitted).
 2013 WL 9854065 at *3.
 Id. at *2.
 Id. at *2 n.10.
 2013 WL 9854065 at *2.
 The doctrine of stare decisis means that courts should follow their own precedent.
 2013 WL 9854065 at *4 (Agnes, J., concurring in result only) (citing Rhode v. Beacon Sales Co., 616 N.E.2d 103, 106 (Mass. 1993) (emphasis in original).