Opinion
19-P-1502
07-17-2020
OMAR ZOUHAR v. BELMONT HILL CORPORATION & another.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The workers' compensation insurance carrier in this case, Paramount Insurance, does not contest that the employee, Omar Zouhar, was entitled to the more than $500,000 in benefits Paramount has paid on the employee's behalf in connection with a traumatic brain injury the employee suffered on March 30, 2012, during the course of his employment. The previously healthy, thirty-seven year old employee tripped on a pothole in the parking lot of his workplace and hit his head on the pavement. The employee is now "permanently impaired and disabled for the remainder of his life." In 2014, the employee filed a third-party tort action against the property owner, Belmont Hill Corporation. Because there was some question whether the employer or the property owner was responsible for maintaining the parking lot, the employee and Belmont Hill Corporation agreed to settle the employee's tort claims for $100,000. In accordance with G. L. c. 152, § 15, the employee petitioned a judge of the Superior Court for approval of the allocation of the settlement proceeds. By that time, Paramount had secured a workers' compensation lien in the amount of $514,903, for reimbursement of (1) its payment of the employee's medical expenses, and (2) lost wage payments.
The employee proposed that $8,000 of the settlement go to Paramount in satisfaction of the workers' compensation lien, and $92,000 be allocated to compensate him for past and future pain and suffering. Attorney's fees and expenses would be deducted from the employee's portion, resulting in a net payment to the employee of $51,017.54. Paramount objected to the proposed settlement because it allocated so much to pain and suffering and so little to satisfy Paramount's lien. Paramount observed that $8,000 was not even close to satisfying its lien and requested that the judge instead allocate one-third of the gross settlement amount ($33,000) to Paramount, in satisfaction of its lien. Essentially, Paramount proposed a three-way split between Paramount, the employee, and the employee's attorney, with each receiving roughly equal distributions of the settlement proceeds.
Under Paramount's suggested division, the employee would have netted $30,783.62, due to the employee's reimbursement to his attorney of certain litigation expenses.
On December 13, 2018, a hearing on the employee's petition took place. The parties and the judge discussed at length the Supreme Judicial Court's decision in DiCarlo v. Suffolk Constr. Co., 473 Mass. 624 (2016). Relying on "[t]he SJC's guidance in DiCarlo," the judge ultimately "focus[ed] on the injuries claimed, together with the prescription on double recovery that underlies Section 15," and found, in a thorough and thoughtful decision, that the employee's proposed allocation "is supported by the injuries and facts of the case." The judge approved the employee's proposed settlement allocation after concluding that it was fair and reasonable. Paramount appeals from the order, claiming that the judge erred by considering only whether the settlement was fair and reasonable to the employee. In Paramount's view, the judge was required to consider the amount of the workers' compensation lien and determine what a jury would likely award for pain and suffering in deciding whether the settlement allocation was fair and reasonable under G. L. c. 152, § 15.
We will "accept the judge's over-all finding [if] it is not clearly erroneous and is supported by evidence in the record." Hultin v. Francis Harvey & Sons, Inc., 40 Mass. App. Ct. 692, 697 (1996). Because we conclude that the judge's finding was neither clearly erroneous nor unsupported, we affirm.
Discussion. The judge appropriately determined in the first instance how much of the settlement amount should be allocated to pain and suffering. Section 15 did not entitle Paramount to satisfy its statutory lien before the proceeds of the settlement had been allocated between compensable and noncompensable injuries under G. L. c. 152. See Hultin, 40 Mass. App. Ct. at 695 (spouse's loss of consortium is not compensable injury under G. L. c. 152). The judge found that awarding the employee $92,000 out of $100,000 was "well justified by plaintiff's injuries." Paramount does not challenge that finding, nor could it reasonably do so on this record. Instead, as we have noted, it claims that the judge should have considered, as part of his analysis, what a jury would have awarded the employee and the amount of Paramount's lien.
Paramount did not submit to the motion judge what amount it proposed a jury would have awarded the employee as damages for pain and suffering, or why it believes it would have been anything less than the entire $100,000 given the extent of the employee's catastrophic injuries. Nor does Paramount undertake that analysis in this appeal. We see no error in the judge's conclusion that it was fair and reasonable to allocate to the employee $92,000 out of the $100,000 in light of the devastating pain and suffering the employee has endured and will continue to endure during his lifetime. "[T]he 1971 amendments to § 15 . . . 'expanded the right of an employee to recover against third parties, indicat[ing] the Legislature's intention that the injured employee be fully compensated for his injuries.'" Bermudez v. Dielectrics, Inc., 94 Mass. App. Ct. 491, 496 (2018), quoting Wentworth v. Henry C. Becker Custom Bldg. Ltd., 459 Mass. 768, 771 (2011). For the rest of his life, this employee will never work or walk again.
As to the $92,000, it is settled that "an insurer's [workers' compensation] lien does not extend to damages allocated to an employee's pain and suffering." DiCarlo, 473 Mass. at 626. Paramount never compensated the employee for those harms, thus, that portion of the settlement proceeds were "complete[ly] exempt[] from the insurer's lien." Id. at 631. There was no double recovery to the employee, and no error in approving the employee's petition to settle the third-party action.
Order allowing petition for approval of third-party settlement affirmed.
By the Court (Kinder, Neyman & McDonough, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: July 17, 2020.