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Workers' Compensation

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Our attorneys are well versed in the complexities of Workers' Compensation law and have successfully represented hundreds of workers in their dealings with insurance companies. We understand the financial and emotional impact of work-related injuries and illnesses, and strive to ensure that injured workers achieve the best possible protection of their rights under the Workers' Compensation program. When third-parties are involved in causing work-related injuries, we also pursue third-party claims to maximize the benefits received by clients. Injured workers may be eligible for any or all of these benefits: medical benefits, total disability benefits, partial disability benefits, total and permanent disability benefits, loss of function benefits, disfigurement benefits, vocational rehabilitation benefits. Under some circumstances, the amount of benefits due to an injured worker may be doubled.

In Massachusetts, the Workers' Compensation Act entitles you to important benefits for disabling, work-related injuries. This guide explains how the compensation system works and offers suggestions to help protect your rights. It is geared toward workers injured on or after December 23, 1991, the date on which a total revision of the Compensation Act became effective. If you were injured prior to December 23, 1991, your rights and responsibilities are different.

Under the new law, most attorneys' fees are paid by the insurer in successful claims. Under both the old and new laws, some firms, including Thornton & Naumes, charge no fee for initial consultation. It is therefore both legally and financially to your advantage to consult an attorney regarding any workers' compensation-related questions.

What is Workers' Compensation?

Workers' Compensation is a type of insurance which nearly all Massachusetts employers are required by law to provide for their employees. This obligation applies to both private and public employers regardless of the number of persons employed. It makes no difference whether an employer is characterized as a business-for-profit, or a non-profit or charitable organization. In each case, workers' compensation insurance must be provided.

Most employers buy coverage from an insurance company and the insurance company pays the benefits. Some employers, such as the Commonwealth of Massachusetts, are self-insured; this means that the employer pays benefits directly.

Very few employees are excluded from coverage. Major exceptions include the Federal Government, railroads, shipyards, and maritime employers. Employees in those industries are covered by other compensation laws, such as the Lonshoremen and Harborworkers Act and the Federal Employers Liability Act.

Workers' Compensation provides regular weekly payments, medical coverage, vocational training, and other benefits to workers injured in the course of their employment. The basic purpose of the law is to provide prompt compensation for impairment of earning capacity. The Compensation Act sets strict deadlines for the processing of the claims, and imposes penalties on insurers who fail to make timely benefit payments when required.

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Lawsuits Against Employers

In exchange for the faster and more predictable benefits of workers' compensation, employees give up their rights to sue their employers in court. The right to sue for personal injury is automatically lost at the start of employment, unless the employee gives the employer written notice of intent to preserve the right on the day of hire.

Exception: If an employer fails to carry workers' compensation insurance in violation of the law, the injured employee can sue the employer in court. (As an alternative, the employee may file a claim for benefits from a special fund administered by the Department of Industrial Accidents.)

An important point to remember is that workers' compensation is a no-fault system.

If you have a work-related injury, you are entitled to medical benefits. If you are disabled for at least five days of work, you are entitled to disability benefits as well. You do not need to prove that anyone-employer, co-worker or third-party-was negligent. Furthermore, you will not lose out on benefits even if you were at fault unless it can be shown that the injury was the result of your own "serious and willful misconduct." Simple carelessness will not result in a denial of benefits.

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Third Party Lawsuits

In some cases, an employee can both receive compensation benefits and file a lawsuit against someone (other than his or her employer or co-workers-e.g., a manufacturer, distributor or another contractor) who may be partly responsible for the work-related injury. This may be known as a third-party lawsuit. However, if the employee receives a money judgment in court, the compensation insurer has a right to recover amounts paid in benefits from the court award. (In fact, an insurer who has paid benefits can bring a third-party lawsuit in the employee's name. This is known as subrogation.)

There are three main advantages to the employee who has filed a workers' compensation claim in bringing a third-party action:

He or she may ultimately recover a greater amount from a judge or jury than from workers' compensation;
The employee may receive compensation benefits while waiting for trial; and
The employee may receive a money judgment in court for "pain and suffering." (There are no benefits for pain and suffering under workers' compensation).

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What Types of Injuries are Covered?

Pre-Existing Conditions and Injuries

A common but mistaken belief is that a medical condition or injury that predates the start of employment is not compensable. An employee is not barred from receiving benefits simply because he or she has a pre-existing injury, disability or medical problem. However, the new work-related injury must be a major, but not necessarily predominant, cause of the disability or need for treatment.

The Massachusetts Workers' Compensation Act requires an employer to accept an employee "as is." If an incident at work aggravates an pre-existing condition in a major way so that the employee cannot work, the entire disability is work-related and the insurer must pay benefits.

Occupational Diseases

Workers in the manufacturing and construction industries are sometimes exposed to toxic substances. Diseases resulting form such exposures are covered. Infectious or contagious diseases are also compensable if the risk of infection is "inherent in the employment." For example, the risk of contracting tuberculosis or hepatitis is inherent in healthcare employment.

Heart Attack

Heart disease, or coronary artery disease, may be caused by a variety of factors such as stress, diet, hereditary predisposition and smoking. As already noted, benefits are not lost merely because an employee has a pre-existing condition.

Heart attacks can be brought on or "precipitated" by physical or mental exertion in the workplace. Where that is the case, and employee may be eligible for benefits even though he or she has a pre-existing heart condition.

Heart Attacks Away from Work

A heart attack need not take place at work to be compensable. If chest pain and/or other symptoms (such as nausea and sweating) started at work and were fairly regular until the time of the attack, the injury may be covered. The particular facts of each case, especially as reported at the time to co-workers, supervisors, and doctors, will determine the success of a claim.

Chronic Trauma

Recovery of compensation benefits does not always depend on an employee's ability to recall a specific incident that led to an injury. Some conditions - such as hernias and back problems - are the result of repetitious job functions that put stress on certain parts of the body. The general term for the cause of such injuries is chronic trauma .

There are subtle differences between injuries due to chronic trauma and damage caused by the "normal wear and tear" of the job. Compensation will not be awarded for normal wear and tear.

Some factors that distinguish chronic trauma from wear and tear are: 1) whether the particular stress is a characteristic of the job or common to everyday activity; 2) whether the symptoms developed suddenly or gradually; and 3) whether there was a particularly stressful period of time which may have hastened or "precipitated" the injury.

Many back ailments, problems with knees and nerve damage are examples of the results of chronic trauma.

Mental or Emotional Illness

Disabling episodes of depression, anxiety and other mental or emotional problems are compensable if a specific, stressful work incident (or series of events) is the predominant contributing cause of the illness. However, like other types of injury already discussed, mental or emotional disabilities are subject to the "normal wear and tear" rule. The fact that a job is stressful will not, by itself, be enough to recover benefits for a nervous breakdown. There must be precipitating physical or mental trauma at work. This is an exception to the "as is" rule noted earlier. If an employee has a history of mental or emotional problems pre-dating employment and the employee's particular sensitivity makes him or her unsuited to the job, recovery of benefits is unlikely.

Mental or emotional injuries occurring after January 1, 1986, as a result of a bona fide (good faith) personnel decision-such as a transfer, demotion, or discharge-are not compensable. An exception to this rule is the case where the personnel decision amounts to intentional infliction of emotional harm.

Injuries on the Employer's Premises

An employee does not have to be actually performing his or her job duties when injured in order to receive workers' compensation. What is required is that the employee be on the premises. A slip and fall in the employer's cafeteria during lunch or in the plant parking lot on the way into or home from work may be a compensable injury.

Travel Injuries

The general rule is that accidents occurring while off the premises, but during travel to and from work, are not compensable. An exception is made for special trips required by the employer. This includes injuries that happen on business trips, travel between worksites, customer service calls, and the pick-up and delivery of supplies or goods.

Other Injuries

It would be impossible to list here all the types of injuries and related circumstances that are compensable. If you have an illness or condition that may be work related, and have been out of work for five work days, consult an attorney.

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Benefits

Injured workers my be eligible for some or all of the following benefits:

Medical Benefits
Total Disability Benefits
Partial Disability Benefits
Total and Permanent Disability Benefits
Loss of Function Benefits
Disfigurement Benefits
Vocational Rehabilitation Benefits
Double Compensation Benefits

In addition, in some cases, employees' dependents and widows can receive benefits. Compensation benefits are not taxable.

Workers' compensation insurers (and self-insurers) must pay for all medical costs associated with the treatment of work-related injuries. This obligation continues as long as treatment is needed; if necessary, for the duration of the worker's life. The insurer pays the medical provider directly. Covered benefits include the cost of hospitalization, office visits to doctors, prescriptions, surgical procedures, x-rays, therapy, travel to and from treatment, and all other medical services. The maximum amount providers can charge is set by the state.

Temporary Total Disability Benefits

An employee who is unable to engage in any gainful employment due to a work-related injury is considered totally disabled under the Workers' Compensation Act.

To be eligible for disability benefits, the employee must be disabled for five calendar days. The days do not have to be consecutive. (The days lost must be for the same injury.) Weekends also count, whether or not work is scheduled. If incapacity extends for a period of twenty-one days or more, compensation shall be paid from the date of onset of incapacity. If incapacity extends for a period of at least five but less than twenty-one days, compensation shall be paid from the sixth day of incapacity.

Weekly Rate

The weekly rate for total disability is 60% of the employee's average weekly wage up to a maximum amount. The maximum is set at 100% of the statewide average weekly wage in Massachusetts at the time of injury. The Massachusetts average weekly wage is determined annually on October 1st by the Division of Employment Security, and remains in effect until September 30th of the next year.

Employee's Average Weekly Wage

An employee's average weekly wage is based on total earnings for the 52 weeks prior to injury. Total earnings (including overtime, commissions and bonuses) are divided by 52. Total earnings also include income from a second job worked at the time of injury if the employee is also disabled from working that job.

If a worker has been with an employer less that 52 weeks at the time of the injury, the average is calculated by dividing total earnings by the number of weeks worked. Extremely short-term employees can use the average wage of a worker in the same job with the same employer or within the same industry.

Maximum Rates

Injury On or After Maximum Weekly Benefit

10/01/2001	$890.94
10/01/2002	$882.57
10/01/2003	$884.46

Note: The minimum benefit is 20% of the state average weekly wage.

Maximum Duration

Total disability benefits are payable for up to three years (156 weeks). After that, the employee is considered either partially or permanently and totally disabled. Partial disability benefits are payable for up to five years (260 weeks). Under most circumstances, the maximum period of total disability benefits plus partial disability is seven years (364 weeks). However, these periods may be extended under certain circumstances. An employee should consult an attorney if his or her period of benefits expires.

Partial Disability Benefits

Partially disabled employees are workers who are able to perform some duties from the date of injury, or who were totally disabled but have improved to the point where they can work part-time. In either case, they are unable to earn their previous wages. These employees are eligible to receive weekly cash benefits equal to sixty percent of their lost earning capacity up to the maximum set by the statewide average or, in case of initial total disability being replaced by partial, up to 75 percent of the previous total disability rate.

As suggested above, partial disability benefits are payable whether or not time is lost from work. Other examples include: injuries that cause an employee to reduce piece-rate earnings, and injuries that cause a reduction in hours worked.

Total and Permanent Disability Benefits

Totally and permanently disabled employees are those whose injuries prevent them from ever working any job on a full-time or near full-time basis. They can receive compensation benefits for the rest of their lives. These total and permanent disability benefits are available after other disability benefits are exhausted. The benefits rate is two-thirds of the employee's average weekly wage with the addition of a cost of living adjustment beginning two years after the injury date. However, this cost of living increase is not available to the extent that it reduces Social Security Disability Insurance benefits received by the employee.

Loss of Function Benefits

In addition to weekly cash payments for loss of earning capacity, employees whose injuries include permanent (total or partial) loss of a body part or sense are entitled to a one-time cash payment. This benefit is paid according to a schedule of rates based on multiples of the statewide average weekly wage at the time of injury. Partial loss of function is paid as a percentage of the scheduled rates.

Disfigurement Benefits

Disfigurement-such as permanent scarring if it is on the face, neck or hands-is also compensable according to guidelines established by the Department of Industrial Accidents (DIA). Normally, this benefit will not be paid until at least six months from the date of injury and/or the last surgery. The amount paid depends on such factors as the location, length, width and severity of scarring or disfigurement.

Vocational Rehabilitation Benefits

The insurer must pay the cost of vocational rehabilitation of employees whose injuries prevent a return to their previous occupations. This includes vocational counseling, placement assistance, and possible retraining for a different occupational field. If retraining is appropriate, these benefits include tuition, books and transportation expenses. The Department of Industrial Accidents (DIA) determines if vocational rehabilitation is called for. Employee participation is voluntary. However, weekly compensation benefits may be reduced by fifteen percent if the employee refuses the service or fails to cooperate with rehabilitation services deemed appropriate.

Double Compensation Benefits

If an employee's injuries are the result of the employer's "serious and willful misconduct," he or she may recover double the benefits discussed above. These cases are difficult to establish, since they require proof that the employer or supervisor acted deliberately, or knowingly disregarded an established safety standard.

Death Benefits

If an employee's death results from a work-related injury, his or her spouse and dependent children will receive weekly death benefits. The spouse is entitled to weekly benefits at a rate similar to that of total and permanent disability benefits. These death benefits last five years or longer if the spouse is not fully self-supporting. If at any time the surviving spouse remarries, the benefits terminate automatically. However, minor or handicapped children may continue to receive up to sixty dollars per week per child.

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Department of Industrial Accidents (DIA) Procedures

The Injury Report

Your employer must report any injury that results in the loss of five days or more of work. The day of injury counts as one full day so long as at least four hours are lost. The injury is reported on an official DIA form called Employer's First Report of Injury . Your employer must give copies of the report to you , the DIA and the insurer . Your employer must give you the report within seven days of the date on which he receives notice of the fact that you have been injured and disabled for five calendar days.

Note: The five days of disability do not have to be consecutive days, so long as they are related to the injury.

Voluntary Payments: 14 Day Rule

The insurer has 14 calendar days after receiving the First Report to decide on one of two courses of action. The insurer must either:

Send you a notice of acceptance and a first compensation check ; or
Send a notice of rejection by certified mail to you , your employer , and the DIA . This notice must contain the following information:
- an exact statement of the reasons for rejection;
- a statement of the insurer's intention to contest any claim by you;
- a statement advising you of your right to file a claim for benefits with the DIA.

An insurer (or self-insured employer) who fails to act within 14 days faces several possible penalties:

The DIA may order the insurer to pay a penalty in an amount equal to two hundred dollars to the employee; If the insurer fails to commence such payment or to make such notification of denial within sixty days, it shall pay an additional penalty to the department of two thousand dollars; such additional penalty shall be ten thousand dollars if payment or denial is not commenced within ninety days.

Filing a Claim: 30 Day Rule

An employee whose claim has been rejected by an insurer can file a claim with the DIA in Boston. (If the employee lives in an area serviced by one of the DIA regional offices, the claim can be processed there, but the claim form must be sent to the Boston headquarters.) The employee must wait 30 days from the date of injury, or enclose a copy of the insurer's notification of denial to submit the claim.

Claims can be filed by the employee or the employee's attorney. If a claim is successful, attorneys' fees are paid by the insurer.

Statute of Limitations: Four Years

For injuries occurring after January 1, 1986, the time limit for filing a workers' compensation claim is four years from the date of injury. The four-year period may be extended in the case of an employee who had reason to be unaware of the connection between disability and the job. This is often the case with certain types of occupational disease caused by exposure to toxic materials such as asbestos, lead, welding fumes, formaldehyde, toluene, solvents and radiation. In these situations, the four-year period starts when the employee learns (usually from a diagnosing physician) that there has been a compensable injury or exposure on the job.

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DIA Procedures: Three Steps

After receiving a claim, the DIA follows a three step procedure involving a conciliation session , a conference and a hearing .

Conciliation

The first step in a case contested by the insurer is called conciliation. Conciliation is an effort to settle the case at an early stage. It consists of a meeting between a DIA official (Conciliator), the employee and/or the employee's attorney, and the insurer's attorney. The conciliation session should take place within 15 business days of the claim filing. The conciliator tries to get the parties to reach a voluntary agreement but has no authority to order the insurer to pay benefits, although a recommendation is made. If a conciliation fails, the case will be referred for conference with an Administrative Judge, where the recommendation will be accorded some weight.

Conference

The conference should be held within 28 days from the date of referral. The employee and the insurer's representative or attorney must be present at the conference. If the employee has an attorney, the employee's attorney and the insurer's attorney will present legal arguments to the judge. The judge will receive evidence, including hospital records and physician's reports, and will issue a conference order within seven days. If the judge orders the insurer to pay benefits, the insurer will also be required to pay the employee's attorneys' fees.

Hearing

The employer and the insurer both have 14 days following the conference order to request a formal hearing before the same judge to reconsider his decision. The judge must schedule a hearing within 28 days. In the meantime, the insurer must pay any benefits included in the conference order.

Note: In practice, the DIA does not strictly follow the set scheduling guidelines. For example, it usually takes more than 28 days after a conciliation before a conference is held.

At the hearing, witnesses testify under oath and are subject to cross-examination, and an official transcript is made. The judge may order that an impartial medical examination be performed. In that event, the employee must attend a medical examination by an impartial physician either chosen by the DIA or agreed to by the parties. The impartial physician's report or testimony will be the only medical testimony considered at the hearing unless the judge finds that the case is so complex that other medical opinions would be helpful.

The judge then issues a decision. (Again, any benefits specified in the conference order must be paid.) The judge's decision can be appealed to the DIA Review Board (a panel of judges). A further appeal can be taken to the Massachusetts Appeals Court.

Termination of Benefits: 180 Day Rule

As mentioned earlier, the insurer has 14 days after receiving the First Injury Report to either begin payment of benefits or send a notice of rejection. An insurer who begins payments under the 14-day rule can ultimately terminate or modify payments within the first 180 days of disability.

The insurer does not need permission from the DIA to terminate or reduce benefits during this 180 day "payment without prejudice" period if said change is based on actual income of the employee or if it gives the employee and the DIA at least seven days written notice of its intent to stop or modify benefits and contest any claim filed. The employee can contest discontinuance by filing a claim with the DIA.

Note: The 180 day "payment without prejudice" period may be extended to one year by written agreement between the employee and the insurer.

After 180 Days

After 180 days, the insurer's ability to discontinue or modify benefits is more restricted. Termination is allowed only where one of the following conditions occurs:

The employee's treating doctor, or an impartial physician appointed by the DIA writes a report stating that he or she can return to the job held at the time of injury and the employer states in writing that the job is available. Copies of the doctor's report and the employer's offer must accompany the notice. The insurer petitions the DIA for a determination of ability to work. This is known as a complaint for discontinuance of benefits, and follows the three-step process of conciliation, conference, and hearing. The complaint must be based on a physician's report indicating the capacity to work.

Note: The employee must appear for examination by a physician selected by the insurer. Failure to appear can result in suspension or loss of benefits. The insurer must pay the employee's expenses for travel to and from the exam. The examination must be scheduled for a day and time convenient to the employee.
The employee has returned to work and is earning his or her regular wages. If the employee is earning less than usual wages, due to disability, the insurer must continue to pay partial compensation, i.e., sixty percent of the wages lost due to disability, but not in excess of 75 percent of the previous total disability rate. An employee who returns to work must be given a 28-day trial period. If the employee's disability causes him or her to leave work during this twenty-eight day period, and if the employee informs the employer and insurer by certified mail during the 21 days after he or she leaves work, the insurer must resume benefit payments.

Lump Sum Settlements

Be Aware: This is Strictly Voluntary
The first point to keep in mind is that no one can force you to sign a lump sum settlement agreement. If an insurer asks you to sign a release, you should consult an attorney.

In a lump sum situation, the insurer gives the employee a single sum of cash; in exchange the employee releases the insurer from any further obligation to make weekly cash benefit payments. Acceptance of lump sum settlement creates a presumption that the employee is physically incapable of returning to work with the employer where the injury occurred. Such presumption shall continue for a period of one month for each fifteen hundred dollar amount included in the settlement.

However, a lump sum settlement for injuries occurring after November 1, 1986, will not release the insurer's responsibility for medical and vocational training benefits.

Exception: A worker injured after November 1, 1986, can release the insurer from future "foreseeable" medical expenses if he or she "lump sums" before the insurer has accepted a claim and before a DIA judge orders payment.

Note: It is illegal for an insurer or self-insurer to demand the employee's resignation as a condition for lump sum settlement.

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After Recovery

Reinstatement

Most employers take injured employees back following recovery. However, they are not required to do so by the Compensation Act. Employers are only obligated to give injured employees preference over new hires for vacancies. The employer can replace and injured employee while out on disability.

Non-Discrimination

It is illegal for an employer to discriminate against an employee for filing a compensation claim, collecting benefits or testifying at DIA hearings.

Rights to Accommodation

Under the Massachusetts Handicapped Workers' Rights Act, employees on workers' compensation are considered "handicapped." As a result, their employers must make reasonable accommodations to help them continue in employment, such as adjustments in schedules and duties as well as providing special equipment.

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Department of Industrial Accidents

The Department of Industrial Accidents (DIA) is the Massachusetts state agency responsible for administering the Workers' Compensation Act. Headquartered in Boston, DIA has four regional offices:

Boston
600 Washington Street
Boston, MA 02111
(617) 727-4900

Fall River
30 Third Street
Fall River, MA 02720
(508) 676-3406

Lawrence
160 Winthrop Avenue
Lawrence, MA 01843
(978) 683-6420

Springfield
436 Dwight Street
Springfield, MA 01103
(413) 784-1133

Worcester
340 Main Street, Suite 370
Worcester, MA 01608
(508) 753-2072

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Important Links

If you are interested in obtaining more information about a worker's compensation claim, please contact Attorneys David J. McMorris or Andrew Wainwright at 800-431-4600.

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