At Thornton Law Firm, our attorneys guide injured workers through every step of the complex and sometimes daunting workers compensation claim process. We provide for your information a detailed outline of the 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 workers’ compensation 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 $200 penalty to the employee
- If the insurer fails to commence such payment or to make such notification of denial within 60 days, it must pay an additional penalty to the department of $2,000
- An additional penalty of $10,000 is imposed if payment or denial is not commenced within 90days.
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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 from exposure on the job.
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 conciliation fails, the case will be referred for conference with an Administrative Law 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. 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, which is 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 paying benefits or send a notice of rejection. An insurer who begins payments under the 14-day rule can unilaterally 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 the change is based on actual income of the employee or if the insurer 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 when 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—60 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 28-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 are 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 continues for one month for each $1,500 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 the worker gets a lump sum 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.
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 he or she is out on disability.
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 and providing special equipment.
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:
1 Congress Street, Suite 100
1 Father DeValles Boulevard, 3rd Floor
354 Merrimack Street
436 Dwight Street, Room 105
339 Main Street
- Massachusetts Department of Industrial Accidents
- National Institute for Occupational Safety & Health
- New York State Worker’s Compensation Board
If you are interested in obtaining more information about a workers compensation claim, please contact Attorney David J. McMorris at 1-888-491-9726.
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