Construction Accident in Massachusetts: Workers’ Comp vs. Third-Party Claims
Construction is one of the most dangerous industries in the country. Falls, equipment failures, electrocution, and trench collapses send thousands of workers to the hospital every year. After a construction accident in Massachusetts, you likely have a workers’ comp claim, but you may also have a third party claim: a personal injury lawsuit against someone other than your employer that can recover significantly more compensation. With major construction projects ongoing in Boston, Worcester, Springfield, Cambridge, and communities across Massachusetts, these injuries are common.
Understanding the difference between these two claims, and how they work together, is essential to maximizing your recovery.
Workers’ Compensation: The Baseline
Massachusetts requires virtually all employers to carry workers’ compensation insurance under M.G.L. c. 152. Workers’ comp is a no-fault system, meaning you receive benefits regardless of who caused the injury, including your own negligence.
Workers’ comp benefits include:
- Medical treatment: All reasonable and necessary medical care related to the injury, with no cap and no co-pays
- Temporary total disability: 60% of your average weekly wage (up to the state maximum) while you are completely unable to work
- Temporary partial disability: 60% of the difference between your pre-injury average weekly wage and the weekly wage you are capable of earning after the injury, capped at 75% of the temporary total rate (M.G.L. c. 152, Section 35)
- Permanent disability: Benefits for permanent loss of function (loss of use schedule) or permanent and total disability
- Vocational rehabilitation: Retraining if you cannot return to your previous job
Workers’ comp does not include:
- Pain and suffering
- 100% of lost wages (only 60%)
- Emotional distress
- Loss of enjoyment of life
- Full future earning capacity losses
The tradeoff is clear: workers’ comp provides guaranteed benefits quickly, but the benefits are limited compared to what a full personal injury claim can recover.
The Exclusive Remedy Rule
Under Massachusetts law, workers’ compensation is the exclusive remedy against your employer for a workplace injury. This means you generally cannot sue your employer in a personal injury lawsuit, even if the employer was negligent.
There are narrow exceptions. You may be able to sue your employer directly if the employer intentionally caused your injury or if the employer failed to carry workers’ compensation insurance. But these situations are rare.
The exclusive remedy rule is why the third-party claim is so important. You cannot sue your employer, but you can sue anyone else whose negligence contributed to your construction accident.
What Is a Third Party Claim After a Construction Accident in Massachusetts?
A third-party claim is a personal injury lawsuit against a party other than your employer. On a construction site, multiple companies and entities are typically involved, and any of them can be liable for your injuries.
Common third-party defendants in construction accident cases include:
General contractors: The general contractor has overall responsibility for site safety. If the general contractor failed to enforce safety protocols, maintain the site, or coordinate between subcontractors, they can be liable for injuries to workers employed by subcontractors.
Property owners: The property owner who hired the contractors may be liable if they retained control over the worksite or if a dangerous condition on the property caused the injury.
Subcontractors: Other subcontractors on the site whose negligence caused your injury. For example, if an electrician improperly wired a panel and you were electrocuted, the electrical subcontractor may be liable.
Equipment manufacturers: If a defective piece of equipment caused your injury (a scaffold collapse, crane failure, defective power tool), the manufacturer can be held strictly liable under product liability law.
Architects and engineers: If a design defect in the building plans created the hazardous condition that caused your injury.
Equipment rental companies: Companies that rent construction equipment may be liable if they provided defective or improperly maintained equipment.
Why the Third-Party Claim Matters
The difference in potential recovery between workers’ comp alone and workers’ comp plus a third-party claim can be enormous:
| Type of Damages | Workers’ Comp | Third-Party Lawsuit |
|---|---|---|
| Medical expenses | Yes (all reasonable) | Yes (all reasonable) |
| Lost wages | 60% of average weekly wage | 100% of lost income |
| Future lost earnings | Limited | Full future earning capacity |
| Pain and suffering | No | Yes |
| Emotional distress | No | Yes |
| Loss of enjoyment of life | No | Yes |
| Disfigurement | Schedule benefits only | Full compensation |
For a construction worker who suffers a serious injury like a spinal cord injury, traumatic brain injury, amputation, or severe fracture, the pain and suffering and future lost earnings components of a third-party claim often dwarf the workers’ comp benefits. Settlement values for serious construction injuries frequently reach six and seven figures.
The Workers’ Comp Lien
You can collect both workers’ comp and a third-party settlement, but there is an important interaction. Under M.G.L. c. 152, Section 15, your workers’ compensation insurer has a lien on your third-party recovery.
This means the workers’ comp insurer is entitled to be reimbursed for the benefits it paid from the proceeds of your third-party settlement or verdict. The lien is typically negotiated as part of the overall settlement process, and Section 15 requires that a third-party settlement be approved by the court or the Department of Industrial Accidents.
Here is a simplified example:
- Workers’ comp paid $80,000 in benefits (medical + disability)
- Third-party settlement: $500,000
- Attorney fee (33.3%): $166,500
- Workers’ comp lien (negotiated): $50,000 (reduced from $80,000)
- Net to client: $283,500
Your personal injury attorney will negotiate the workers’ comp lien to reduce the amount the insurer recovers, maximizing your net recovery.
Common Construction Accident Scenarios
Falls from heights: Falls are the leading cause of death and serious injury on construction sites. OSHA requires fall protection at heights of 6 feet or more on construction sites. If a general contractor failed to provide guardrails, safety nets, or personal fall arrest systems, they may be liable for injuries from falls off scaffolding, ladders, roofs, or elevated platforms.
Scaffold collapses: Scaffold failures can be caused by defective equipment (manufacturer liability), improper assembly (general contractor or subcontractor liability), or overloading. Massachusetts follows OSHA scaffold standards and has its own building code requirements.
Struck-by incidents: Workers struck by falling objects, swinging loads from cranes, or moving vehicles on the site. These incidents often involve negligence by the crane operator’s employer, the general contractor’s failure to enforce hard hat zones, or inadequate warning systems.
Electrocution: Contact with power lines, improperly wired temporary electrical systems, or defective equipment. The utility company, electrical subcontractor, or equipment manufacturer may be liable.
Trench collapses: OSHA requires protective systems (shoring, shielding, sloping) for trenches deeper than 5 feet. Trench collapses are often fatal. Utility and infrastructure projects in Lowell, New Bedford, and other Massachusetts cities regularly involve deep excavation. The general contractor and excavation subcontractor are frequently liable for failures to comply with OSHA standards.
Equipment malfunctions: Forklifts, cranes, aerial lifts, and power tools that malfunction due to defective design, manufacturing defects, or inadequate maintenance.
OSHA Violations as Evidence
OSHA violations are powerful evidence in third-party construction accident lawsuits. While an OSHA citation alone does not automatically prove negligence, it demonstrates that the defendant failed to meet the minimum safety standards required by federal law.
Common OSHA standards cited in Massachusetts construction cases include:
- Fall protection (29 CFR 1926.501)
- Scaffolding (29 CFR 1926.451)
- Ladder safety (29 CFR 1926.1053)
- Electrical safety (29 CFR 1926.405)
- Excavation and trenching (29 CFR 1926.652)
- Crane operations (29 CFR 1926.1400)
Your attorney can subpoena OSHA inspection records and use them to establish the third party’s failure to maintain a safe worksite.
Statute of Limitations
The statute of limitations differs for each claim:
- Workers’ compensation: You must report the injury to your employer promptly. The formal claim must be filed within 4 years of the injury (M.G.L. c. 152, Section 41).
- Third-party personal injury: You have 3 years from the date of injury to file a lawsuit (M.G.L. c. 260, Section 2A).
- Product liability: Generally 3 years from the date of injury, with a discovery rule for latent defects.
Do not delay. The filing deadline is strict, and evidence on construction sites disappears quickly. Equipment gets returned, scaffolding gets dismantled, and witnesses move to other job sites. Early investigation by an attorney preserves critical evidence.
Steps to Take After a Construction Accident
- Get medical treatment immediately. Your health comes first. Report all symptoms, including those that seem minor.
- Report the injury to your employer. This starts the workers’ comp process. Report it in writing if possible.
- Document the scene. If you can, take photographs of where the incident happened, the equipment involved, and any hazards. Preserving evidence is critical.
- Identify witnesses. Get names and phone numbers of co-workers and anyone else who saw what happened.
- Do not give statements to anyone other than your employer and your attorney. Insurance adjusters for the general contractor or property owner may contact you quickly, and anything you say can be used against your third-party claim.
- Contact a personal injury attorney. Personal injury lawyers work on contingency, so there is no upfront cost. An attorney can investigate whether a third-party claim exists while you receive workers’ comp benefits.
Frequently Asked Questions
Can I sue my employer if I am hurt on a construction site in Massachusetts?
Generally, no. Massachusetts workers’ compensation law (M.G.L. c. 152) provides the exclusive remedy against your employer. However, you can file a third-party lawsuit against any other party whose negligence caused your injury, such as a general contractor (if not your employer), subcontractor, property owner, equipment manufacturer, or architect/engineer.
What is a third-party construction accident claim?
A third-party claim is a personal injury lawsuit against someone other than your employer who caused or contributed to your construction site injury. Common third-party defendants include general contractors, property owners, equipment manufacturers, and subcontractors. Unlike workers’ comp, a third-party claim allows you to recover full damages including pain and suffering.
Can I collect both workers’ comp and a third-party settlement?
Yes. You can receive workers’ compensation benefits while also pursuing a third-party lawsuit. However, your workers’ comp insurer has a lien on your third-party recovery under M.G.L. c. 152, Section 15. This means the insurer is entitled to be reimbursed for benefits it paid from the proceeds of your third-party settlement or verdict.
What damages can I recover in a third-party construction accident lawsuit?
A third-party lawsuit allows you to recover full damages including medical expenses (past and future), lost wages (100%, not the 60% workers’ comp pays), pain and suffering, emotional distress, loss of enjoyment of life, and disfigurement. These damages can significantly exceed what workers’ compensation provides.
What are the most common causes of construction accidents in Massachusetts?
The most common causes are falls from heights (scaffolding, ladders, roofs), struck-by incidents (falling objects, equipment), electrocution, caught-in or caught-between hazards (trench collapses, machinery), and equipment malfunctions. OSHA calls the first four the ‘Fatal Four’ because they account for the majority of construction worker deaths nationally.
About the Author
Christopher Murphy, Esq. is the Managing Partner of Scalli Murphy Law with offices in Everett and Danvers, Massachusetts. Attorney Murphy has represented personal injury victims across Massachusetts since 1999 and has been recognized as a Massachusetts Super Lawyer in Personal Injury. He has helped thousands of clients and families recover compensation after car accidents, premises liability incidents, wrongful death cases, and other personal injury claims.
Contact Scalli Murphy Law
If you have been injured on a construction site, you may be entitled to far more than workers’ compensation provides. Scalli Murphy Law investigates construction accidents to identify all responsible parties and pursue the maximum recovery available. We handle the third-party claim while coordinating with your workers’ comp case.
Call 617-387-7000 or 1-833-933-HURT for a free consultation. There is no fee unless we recover for you.
Everett Office: 537 Broadway, Everett, MA 02149
Danvers Office: 1 Webb Street, Danvers, MA 01923
Related Resources:
- Workers’ Compensation Practice Area
- Average Settlement Values in Massachusetts
- Statute of Limitations for Personal Injury in Massachusetts
- How Much Does a Personal Injury Lawyer Cost?
This article provides general information about Massachusetts law and is not legal advice. Every case is different. For advice about your specific situation, contact Scalli Murphy Law, P.C. at 617-387-7000 for a free consultation.