Who Pays for a Construction Site Injury in Massachusetts?

Two separate systems can pay for a Massachusetts construction site injury, and in most serious cases both of them do. Workers’ compensation pays first, through your employer’s insurer, regardless of who caused the accident, and it covers medical treatment and a portion of lost wages but nothing for pain and suffering. Separately, you may have a fault-based claim against someone on the site who was not your employer, such as the general contractor, another subcontractor, the property owner, or the manufacturer of a piece of equipment. That second claim is where compensation for pain and suffering comes from. Under M.G.L. c. 152, sec. 15 you are entitled to pursue it “without election,” meaning you do not have to give up workers’ compensation to bring it. The reason the two systems exist side by side is that Massachusetts law generally closes off a direct lawsuit against your own employer, and understanding that trade is the key to how construction injury money actually moves in this state.

Why You Usually Cannot Sue Your Own Employer

The starting point is M.G.L. c. 152, sec. 24, and it surprises most people. The statute provides that an employee “shall be held to have waived his right of action at common law” against the employer for a compensable injury unless the employee gave the employer written notice claiming that right “at the time of his contract of hire.”

Almost nobody does that. Very few people hand a new employer a written reservation of common law rights on their first day, and many would not know it was an option. So the practical effect of sec. 24 is close to universal: your remedy against your own employer is the workers’ compensation system, and only the workers’ compensation system.

This is the bargain at the center of the statute. You give up the right to sue your employer and to prove the employer was careless. In exchange you get benefits that arrive without any proof of fault at all. If you fell because you made a mistake, workers’ compensation still pays. If you fell because a guardrail had been removed, workers’ compensation pays the same amount, and not a dollar more.

That last sentence is why the third-party claim matters so much. Fault does not increase what workers’ compensation pays. Fault is only worth something in a claim against somebody outside the employment relationship.

What Workers’ Compensation Actually Pays

Two benefit sections carry most construction cases, and both are worth knowing by their numbers because they set the floor of what is at stake.

For total incapacity, M.G.L. c. 152, sec. 34 provides compensation at sixty per cent of the employee’s average weekly wage before the injury. The statute caps the total at one hundred fifty-six weeks.

For partial incapacity, M.G.L. c. 152, sec. 35 provides sixty per cent of the difference between the pre-injury average weekly wage and the weekly wage the employee is capable of earning after the injury. That amount is capped at seventy-five per cent of what the employee would receive under sec. 34. The standard limit is two hundred sixty weeks, which an administrative judge may extend to five hundred twenty weeks on a finding of permanent substantial disability or of occupational disease.

Two related questions come up constantly alongside those figures: how long workers’ compensation lasts, and what a workers’ compensation attorney can charge, which in Massachusetts is capped and reviewed rather than left to agreement. Whether an injury on the way to or from a site is covered at all is a separate question addressed in the going and coming rule.

Read those numbers next to a real construction wage and the gap becomes obvious. Sixty per cent of a wage, capped, for a fixed number of weeks, plus medical treatment. There is no line in either section for pain, for permanent loss of the ability to do the work you trained for, or for what the injury does to the rest of your life. Workers’ compensation is a wage-replacement and medical system. It was built that way on purpose.

Answer Capsule

A Massachusetts construction site injury can be paid from two directions. Workers’ compensation comes from your employer’s insurer without regard to fault, and under M.G.L. c. 152, sec. 34 it pays sixty per cent of the pre-injury average weekly wage for up to one hundred fifty-six weeks of total incapacity, or under sec. 35 sixty per cent of the wage difference for partial incapacity, capped at seventy-five per cent of the sec. 34 rate and generally limited to two hundred sixty weeks. It pays nothing for pain and suffering. A direct lawsuit against your own employer is normally unavailable, because M.G.L. c. 152, sec. 24 treats an employee as having waived the common law right of action unless written notice was given at the time of hire. The second direction is a third-party claim against anyone on the site who is not your employer, such as the general contractor when you work for a subcontractor, another trade, the property owner, an equipment manufacturer, or a delivery driver. M.G.L. c. 152, sec. 15 lets you take compensation and pursue that claim “without election,” but the compensation insurer is reimbursed out of the recovery up to what it paid, and no settlement with the third party may be made “without the approval of either the board, the reviewing board, or the court.” Under M.G.L. c. 143, sec. 51 an owner or other person in control of certain buildings is liable “to any person injured for all damages caused by a violation” of the building regulations. Being partly at fault does not end the case: M.G.L. c. 231, sec. 85 bars recovery only when your negligence is greater than the combined negligence of those you are claiming against, and otherwise reduces damages proportionally. Tort claims run three years from accrual under M.G.L. c. 260, sec. 2A, and claims aimed at a deficiency in design or construction carry an outer six-year repose under sec. 2B. Call Jim Glaser Law at (617) JIM-WINS; the first telephone consultation is free.

Who the Third Parties Are on a Construction Site

A construction site is unusual because of how many separate companies work on the same ground at the same time. That crowding is dangerous, and it is also the reason third-party claims arise so often here and so rarely in, say, a single-employer warehouse.

The recurring third parties look like this.

The general contractor, when you work for a subcontractor. This is the most common one. Your employer is the sub. The general contractor controls the schedule, the site logistics, the shared scaffolding and hoists, and the sequencing that puts two trades in the same space. The general contractor is not your employer, so sec. 24 does not shield it.

Another subcontractor. The electrician who left an unmarked opening, the crane operator from a different company, the crew that removed a barricade and did not put it back. Each of those is a separate company with its own insurance.

The property owner. Owners vary enormously in how much control they keep over a site, and the amount of retained control tends to drive how strong a claim against the owner is.

A manufacturer or supplier. Defective lifts, saws without a functioning guard, failed rigging, a ladder that separated. These become product claims and run against companies that were never on the site at all.

Design professionals. Architects and engineers whose drawings or specifications created the hazard.

Drivers and outside vendors. Deliveries, material handling, and vehicle movement through an active site produce a steady share of serious construction injuries, and the driver’s employer is usually a company unconnected to yours.

The practical question after any serious site injury is not “was somebody careless.” It is “who, by name, and were they my employer.” Everyone in the second category is a possible source of the compensation that workers’ compensation does not pay.

The Property Owner and the Building Regulations

Massachusetts has a specific statute that can matter here. M.G.L. c. 143, sec. 51 addresses owners, lessees, mortgagees in possession, and occupants in control of certain buildings, including factories, workshops, manufacturing establishments and public halls. Its operative language is direct: such a person “shall be liable to any person injured for all damages caused by a violation” of the applicable provisions.

The value of that section is that it can convert a documented regulatory violation into a straightforward basis for liability, rather than requiring the injured person to argue about what a reasonable owner would have done. Whether it applies turns on the type of building and on who was actually in control of it, so it is a section that repays a careful look at the specific property rather than a general assumption.

The Lien, and Why Your Settlement Is Not All Yours

This is the part that catches people out, and it is worth understanding before any numbers are discussed.

M.G.L. c. 152, sec. 15 lets you take workers’ compensation and sue the third party. It also provides that the sum recovered from the third party “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.” In plain terms, the compensation insurer is reimbursed out of your third-party recovery for what it already paid you in benefits and medical bills, and you keep what is left over. The statute also apportions costs and attorney’s fees between the insurer and the employee in proportion to the amounts each receives.

There is a second requirement in the same section that people discover at the worst possible moment. Under sec. 15, “no settlement by agreement shall be made with such other person without the approval of either the board, the reviewing board, or the court.” A third-party settlement in a case with a compensation lien is not final because the parties shook hands. It requires approval, after a hearing at which both the employee and the insurer can be heard on whether the settlement is fair and on what the insurer is entitled to recover.

None of this makes the third-party claim less worth bringing. On a case where compensation paid a modest amount of wage replacement and the third-party claim reflects a permanent injury, the excess to the employee is the great majority of it. But anyone estimating what will land in their own hands has to work through the lien first, and that is a calculation to do early rather than at the end.

Being Partly at Fault Does Not End the Claim

Construction work involves judgment calls at height, in traffic, around energized equipment, and on a schedule. Insurers know this and they lean on it, usually by suggesting the injured worker should have noticed the hazard.

M.G.L. c. 231, sec. 85 sets the actual Massachusetts rule. Contributory negligence does not bar recovery “if such negligence was not greater than the total amount of negligence attributable to the person or persons against whom recovery is sought.” Where it applies, damages “shall be diminished in proportion to the amount of negligence attributable to” the injured person. Two further parts of the section matter as much as the rule itself: the burden of alleging and proving that negligence rests on the party asserting it, and the injured person “shall be presumed to have been in the exercise of due care.”

So a worker found twenty per cent responsible recovers eighty per cent. A worker found half responsible still recovers, because half is not greater than half. The line is at more than fifty per cent of the combined fault, and the party arguing you were careless is the one who has to prove it. The mechanics of that rule, and how insurers use it, are set out in more detail in how comparative negligence works in Massachusetts.

The Deadlines, Including One That Can Run Out Before You Are Hurt

Two limitation statutes govern most construction injury claims, and the second one is unusual enough that it deserves attention on its own.

M.G.L. c. 260, sec. 2A provides that tort actions “shall be commenced only within three years next after the cause of action accrues.” That is the general rule for the third-party claim.

M.G.L. c. 260, sec. 2B applies specifically to actions for damages “arising out of any deficiency or neglect in the design, planning, construction or general administration of an improvement to real property.” It keeps the three-year period from accrual, and then adds an outer limit: in no event may such an action be commenced more than six years after the earlier of the opening of the improvement to use, or its substantial completion together with the owner taking possession.

That six-year outer limit is a statute of repose rather than an ordinary limitation period, and the difference is not academic. An ordinary limitation period starts when the claim accrues. A repose period runs from the construction event itself, which means the six years can expire before anyone is injured. A defect built into a structure in 2018 and opened to use that year can put a 2026 injury claim against the designers and builders of that improvement outside the section, no matter how promptly the injured person acts.

This is one of the reasons a serious construction injury is worth sorting out early rather than after treatment finishes. Notice periods against public bodies are shorter still, which is covered separately in suing a government body in Massachusetts, and identifying which companies are even available as defendants is work that takes time. The full set of Massachusetts injury deadlines is collected in the statute of limitations for personal injury claims.

What Evidence Decides These Cases

Construction cases turn on documents that exist for a few weeks and then stop existing.

The site itself changes fastest. The scaffold gets rebuilt, the opening gets covered, the excavation gets backfilled. Photographs taken the same day by a coworker are often the only record of the condition that caused the injury.

Then there is the paper. Subcontract agreements set out who was responsible for what, and they usually contain indemnity provisions that decide which insurer ultimately pays. Daily logs, toolbox talk sign-in sheets, safety meeting minutes, inspection reports, and delivery tickets place companies and people at the site on the day. Equipment maintenance and inspection records matter in any case involving a lift, a crane, or a saw.

Federal safety inspectors from OSHA investigate construction fatalities and many serious injuries, interview witnesses, and issue citations to employers. The resulting file is a useful body of evidence gathered close to the event by people whose job was to work out what happened.

Finally, there is the medical record, which is what actually establishes the injury. Gaps in treatment are the single most common way a real injury gets argued down.

Frequently Asked Questions

Q: Can I sue my employer for a construction accident in Massachusetts?

A: Usually no. Under M.G.L. c. 152, sec. 24 an employee is held to have waived the right of action at common law against the employer unless written notice claiming that right was given to the employer at the time of the contract of hire, which almost never happens in practice. The remedy against your own employer is the workers’ compensation system. That is why identifying third parties, meaning anyone on the site who was not your employer, is the central task in a serious construction injury case.

Q: Can I collect workers’ compensation and still sue somebody else?

A: Yes. M.G.L. c. 152, sec. 15 says the employee is entitled “without election” to compensation under the chapter and may also proceed against a third person. You do not choose between them. What the section does require is that the compensation insurer be reimbursed out of the third-party recovery up to what it paid, with the excess retained by or paid to the employee, and that any settlement with the third party be approved by the board, the reviewing board, or the court.

Q: How much does workers’ compensation pay in Massachusetts?

A: For total incapacity, M.G.L. c. 152, sec. 34 provides sixty per cent of the average weekly wage before the injury, for a maximum of one hundred fifty-six weeks. For partial incapacity, M.G.L. c. 152, sec. 35 provides sixty per cent of the difference between the pre-injury average weekly wage and what the employee is capable of earning after the injury, capped at seventy-five per cent of the sec. 34 rate, generally for up to two hundred sixty weeks and up to five hundred twenty weeks if an administrative judge makes the findings the section requires. Medical treatment for the work injury is covered separately. Neither section pays anything for pain and suffering.

Q: I work for a subcontractor. Can I bring a claim against the general contractor?

A: That is the most common third-party claim on a Massachusetts construction site. The general contractor is not your employer, so the waiver in M.G.L. c. 152, sec. 24 does not apply to it. Whether a claim succeeds depends on what the general contractor actually controlled, which is usually a question about site logistics, shared equipment such as scaffolding and hoists, and the sequencing that put trades in the same space at the same time. The subcontract agreements are normally the first documents to read.

Q: Does the workers’ compensation insurer take my whole settlement?

A: No. M.G.L. c. 152, sec. 15 gives the insurer reimbursement out of the recovery up to what it has paid, and provides that any excess is retained by or paid to the employee. On a case where the third-party recovery reflects a permanent injury and compensation paid a limited amount of wage replacement, the excess is the larger part. The section also apportions costs and attorney’s fees between the insurer and the employee in proportion to what each receives, so the lien figure is not simply subtracted from the top.

Q: What if I was partly responsible for my own accident?

A: You can still recover. M.G.L. c. 231, sec. 85 bars recovery only where your negligence is greater than the total negligence of the parties you are claiming against, and otherwise reduces damages in proportion to your share. The burden of proving that you were negligent falls on the party asserting it, and the statute presumes that you were in the exercise of due care. Insurers raise worker fault routinely in construction cases; it is an argument to be met with evidence, not a reason to assume there is no claim.

Q: How long do I have to file a construction injury claim in Massachusetts?

A: Tort actions must be commenced within three years after the cause of action accrues, under M.G.L. c. 260, sec. 2A. Claims arising out of a deficiency or neglect in the design, planning, construction or general administration of an improvement to real property carry an additional outer limit under sec. 2B: no more than six years after the improvement was opened to use, or after substantial completion together with the owner taking possession, whichever is earlier. That six-year period runs from the construction rather than from the injury, so it can close before an injury even happens. Workers’ compensation has its own separate deadlines, and claims against public bodies have shorter notice requirements, so the safe assumption is that the real deadline is earlier than three years.

Q: Does an OSHA citation mean my case is proven?

A: Not by itself. An OSHA investigation produces something valuable, which is a record built close to the event by inspectors who interviewed witnesses and examined the site before it changed. That record is evidence and it is often the clearest account of what happened. But the citation is issued in a federal enforcement process against an employer, and the questions in your claim are different ones: who owed you a duty, who breached it, and what the injury is worth. Those are established from the whole body of evidence, of which the OSHA file is one part.

Q: Is Jimmy Knows AI giving me legal advice?

A: No. This is general information about Massachusetts law, not legal advice, and reading it does not create an attorney-client relationship. Construction injury cases turn on facts that are specific to one site, one contract structure and one set of injuries, and the statutes described above apply differently depending on those facts. For advice about a specific situation, call Jim Glaser Law at (617) JIM-WINS.

Talking to a Lawyer

The reason construction injuries are worth sorting out quickly is not urgency for its own sake. It is that the two things which decide these cases both decay. The site changes within days. The list of companies that were on it, and the contracts that say who was responsible for what, take real work to assemble and are not handed over on request.

The structure to keep in mind is simple even when the case is not. Workers’ compensation is the first source and it does not care who was at fault. The third-party claim is the second source and it is the only one that pays for what the injury actually cost you beyond wages. The compensation insurer gets reimbursed out of the second from what it paid under the first, and a court or the board signs off on the result.

Jim Glaser Law handles construction injury claims across Massachusetts, including in Medford, Boston, Worcester and Springfield. Fees are contingent, meaning no fee unless there is a recovery, and the client may be responsible for costs and expenses.

The number is (617) JIM-WINS. The line is answered 24 hours a day. The first telephone consultation is offered without charge.