March 9, 2017 | Thornton Law Firm The workers compensation attorneys at Thornton Law Firm believe every injured client should fully understand the types of injuries that are covered and the benefits available to them and their families. 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. But, any new work-related injury must be a major (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 a 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 from such exposures are covered. You can also be compensated for infectious or contagious diseases if the risk of infection is inherent in the employment. For example, the risk of contracting tuberculosis or hepatitis is inherent in healthcare employment. To discuss your Workers Comp Injury and Benefits contact the Boston law firm of Thornton Law Firm online or at 1-888-491-9726 for a free consultation. 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 by physical or mental exertion in the workplace. When that is the case, an employee may be eligible for benefits, even with 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 cause of such injuries is called 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 is not awarded for normal wear and tear. Some factors that distinguish chronic trauma from wear and tear are whether: The particular stress is a characteristic of the job or common to everyday activity The symptoms developed suddenly or gradually 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 chronic trauma injuries. 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 is not 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, because of a bona fide (good faith) personnel decision—such as a transfer, demotion, or discharge—are not eligible for compensation. One exception is when a personnel decision amounts to intentional infliction of emotional harm. Injuries on the employer’s premises An employee does not actually have to be 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 during 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 workdays, consult an attorney. Benefits Injured workers may 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 Death benefits In addition, in some cases, employees’ dependents and widows can receive benefits. Compensation benefits are not taxable. Medical benefits 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—sometimes 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 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, however, 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 21 days or more, compensation is paid from the date of onset of incapacity. If incapacity extends for a period of at least five but less than 21 days, compensation is paid from the sixth day of incapacity. Weekly rate Totally disabled employees are paid 60% of the employee’s average weekly wage up to a maximum amount. The maximum is set by the state of Massachusetts at 100% of the statewide average weekly wage. The Massachusetts average weekly wage is determined annually on October 1st by the Division of Employment Security, and remains in effect until September 30 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 than 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. State-established maximum rates 10/01/2002 $882.57 10/01/2008 $1,093.27 10/01/2003 $884.46 10/01/2009 $1,094.70 10/01/2004 $918.78 10/01/2010 $1,088.06 10/01/2005 $958.58 10/01/2011 $1,135.82 10/01/2006 $1,000.43 10/01/2012 $1,173.06 10/01/2007 $1,043.54 10/01/2013 $1,181.28 Maximum weekly benefit for injury on or after a specific date 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 the 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 that 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 60 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 if 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. Even though employee participation is voluntary, weekly compensation benefits may be reduced by 15 percent if the employee refuses the service or fails to cooperate with appropriate rehabilitation services. Double compensation benefits Employees injured as a result t of the employer’s serious and willful misconduct, 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, the surviving 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 $60 per week per child. For additional information, please see— Workers comp law Workers compensation procedures Trust our Massachusetts workers compensation attorneys to help Contact the Boston law firm of Thornton Law Firm online or at 1-888-491-9726 for a free consultation with a recognized leader in workplace injury litigation. You have nothing to risk. We offer a fair and accurate assessment of your case.