WORKER'S COMPENSATION

 

 

WHAT IS WORKER'S COMPENSATION?

Under the Massachusetts Worker’s Compensation system, employers are required by Massachusetts law to carry workers’ compensation insurance, covering all employees. This insurance covers expenses incurred by the employee as a result of a work-related injury, such as any necessary medical treatment related to the injury, as well as partial compensation for lost wages. By having this insurance, your employer is protected from being sued by you because of the injury. You may, however, sue a third party, in a civil suit.  

 

If your employer does not have workers' compensation insurance, there are provisions in the law that will still ensure that you are covered.  It is strongly advised that you have an attorney represent you in this situation to be sure that the proper procedures are followed.  You may also be able to pursue a tort action against your employer for failure to have workers’ compensation insurance.

 

The types of benefits and the amounts payable are established under The Workers’ Compensation Act, MGL, c.152, which is governed by the Department of Industrial Accidents.

 

 

 

WHAT TYPES OF INJURIES ARE COVERED?

In many cases, it's simple to identify when an injury has occurred at work. An ironworker slips and falls on a wet beam at a construction site, injuring an ankle or shoulder. A nurse feels pain in her low back and legs while moving a patient. An assembler's hand is crushed by malfunctioning or defective machinery. All of these types of physical injuries represent viable workers' compensation claims.

 

Sometimes, though, it's more difficult to decide if you have a workers' compensation claim. A supervisor, co-worker, or job requirement is causing you emotional stress. You feel pain in your hands, arms, or other parts of your body as a result of repetitive activities such as typing or packing boxes, even though you can't identify a specific day or time of injury. You have developed a debilitating condition or disease that your doctor says is related to workplace exposures such as asbestos. In these types of instances, you may be entitled to workers' compensation benefits.

 

 

 

WHAT DO I DO IF I AM INJURED AT WORK?

• Immediately report the injury to your employer and complete an accident report as soon as possible.
• Seek medical attention at a medical facility as soon as possible. Be sure to inform your medical facility as to how and where your accident occurred.
• Obtain the names and contact information of any witnesses to your accident
• NEVER sign any documents that you do not understand, and NEVER give a recorded statement without first consulting with an attorney.

 

 

 

I WAS INJURED AT WORK A YEAR AGO, CAN I FILE A CLAIM TODAY?

Yes.  An employee has four years from the date that he or she first became aware that the disability arose out of their employment, within which to file a claim.

 

 

 

CAN I TREAT WITH ANY DOCTOR OF MY CHOICE?

Yes. Neither your employer, nor the insurer can tell you where or with whom you should treat. However, if you do decide to switch doctors, you should be aware that you may only change your treating physician once in a specific specialty.

 

 

 

WHEN WILL I BEGIN RECEIVING BENEFITS?

You must be unable to receive full wages for five or more days as a result of your work injury before your employer has an obligation to report your injury to the insurer and to the Department of Industrial Accidents. The insurer then has 14 days from receipt of the employer’s first report, to investigate your claim, and to make a decision as to whether they will pay or deny you benefits. The insurer must notify you of its decision in writing. Keep in mind that if the insurer initially decides to make payments to you, it may still terminate your benefits at any time within the first 180 days of your disability, as long as you receive seven days notice.

 

 

 

HOW ARE BENEFITS CALCULATED?

Most benefits are based on your average weekly wage prior to your injury (including overtime, tips, etc.).  Your average weekly wage is calculated by taking your wages for the 52 weeks prior to your date of injury. If you have not been in your current job long enough to fairly determine your average week wage, the insurer can base the figure by using the actual wages of a co-worker who had been in a similar job as yours long enough to determine rate, or another method.

 

All workers’ compensation payments are tax-free.

 

 

 

WHAT TYPES OF BENEFITS ARE AVAILABLE TO ME?

Medical Benefits

You are entitled to adequate and reasonable medical care. You will also be paid mileage for travel to and from medical visits. For your first visit to the doctor or hospital your employer has the right to designate a health care provider within the employer’s preferred provider arrangement. After that initial treatment, you have the right to choose your own health care providers. You may change these providers one time without the permission of the insurer. To change providers again you will need the insurer to agree to the change. The insurer has the right to send you to see its doctor for an evaluation of your incapacity.

 

Temporary Total Incapacity Benefits

Temporary benefits are payable for up to 156 weeks, if your injury leaves you unable to work, considering your age, training, and experience, for six or more calendar days (the days do not have to be consecutive). Compensation begins on the sixth day of incapacity; you will not be compensated for the first five days of incapacity unless you are disabled for 21 days or more. Again, these days do not have to be consecutive. *

 

Partial Incapacity Benefits

Partial incapacity benefits are payable for up to 520 weeks for severe incapacity, and, a maximum of 260 weeks if you are not cleared to return to full duty by your doctor, but you have an earning capacity.*

 

*The combination of temporary total benefits, and temporary partial benefits, cannot exceed 364 weeks (7 years).

 

Permanent and Total Incapacity Benefits

If you are totally and permanently unable to do any kind of work as a result of a work-related injury or illness you may be entitled to permanent benefits. You can receive these benefits for as long as you are unable to work.

 

Permanent Loss of Function and Disfigurement Benefits

If your injury results in a permanent loss of certain specific bodily functions, or in scarring, you can receive a one-time payment under Section 36 of the workers' compensation law. This benefit is paid in addition to other payments -- medical bills, lost wages, etc. You receive this additional compensation for scars only if they are on your face, neck, or hands.

 

Other Benefits

Reasonable burial expenses up to an amount determined by the Statute will be paid when the employee’s injury results in death.

Surviving spouses can receive weekly benefits, as determined by the Statute, of the deceased worker's average weekly wage, so long as they remain dependent and do not remarry.

If the spouse remarries, benefits are available to each eligible child, at a rate not to exceed the amount the spouse had been receiving.

 

 

 

DO I HAVE TO GO TO A MEDICAL EXAM SCHEDULED BY THE INSURER?

Yes.  If you fail or refuse to attend the exam, your weekly benefits may be suspended or forfeited. When you do attend the exam, the insurer is obligated to send you a copy of the doctor’s report, and reimburse you for reasonable travel expenses.

 

 

 

CAN I ALSO RECEIVE SOCIAL SECURITY DISABILITY BENEFITS?

Yes.  You may apply for, and receive Social Security Disability benefits while you are receiving workers’ compensation benefits. The amount of Social Security Disability benefits you receive may be affected by your workers’ compensation benefits.

 

 

 

WHAT IF MY DOCTOR SAYS I CAN’T RETURN TO THE KIND OF WORK I WAS DOING?

You have the right to seek vocational counseling, which is administered through the Department of Industrial Accidents.

 

 

 

WHAT ARE VOCATIONAL REHABILITATION SERVICES?

The goal of vocational rehabilitation is to help you find a new career earning as close as possible to what you were making prior to your injury. Vocational rehabilitation services cover all non-medical services that you may require to return to a suitable job, such as: evaluation of your capabilities; vocational testing; counseling or guidance; workplace modifications; and/or, job placement assistance/formal retraining.   If you are requested to meet with one of the DIA Vocational Rehabilitation Review Officers you MUST attend the meeting.

 

 

 

WHAT IS A LUMP SUM SETTLEMENT?

A lump sum settlement is a one-time payment may be made in place of your weekly compensation checks and certain other benefits.

 

If the insurer accepts legal liability for your injury, when you lump sum your case, your medical benefits will remain open, meaning that the insurer must continue to pay for necessary and reasonable medical treatment and vocational rehabilitation services.

 

 

 

DOES THE INSURANCE COMPANY HAVE TO SETTLE MY CASE?

No.  The insurance company is not obligated to settle your case.  However, we are experienced in dealing with insurance claims representatives, or their attorneys in an attempt to negotiate a settlement, if that best suits your circumstances. Many issues need to be taken into consideration before settling your case, such as vocational assistance, payment of medical bills, and the effect that such a settlement may have on other benefits you may be receiving.

 

 

 

CAN MY BENEFITS BE STOPPED OR REDUCED?

Your benefits might be stopped or reduced for several reasons. Some of the more common reasons, when liability has been established, are:

 

• it is ordered by an arbitrator, administrative judge, reviewing board, or higher court;
• you have returned to work;

• your treating physician or an impartial medical examiner provides the insurer with a medical report stating that you are capable of returning to work, and your employer has reported in writing that a suitable position is available for you that your doctor has approved;
• you refuse to attend or cooperation with a vocational rehabilitation evaluation by a DIA vocational rehabilitation review ;
• you refuse or fail to attend an exam for evaluation scheduled with the insurer’s doctor;
• you are imprisoned after conviction for either a misdemeanor or felony.

 

 

 

DO I NEED AN ATTORNEY?

There is no charge for a consultation relative to a workers’ compensation claim, as attorney fees are set forth under the Workers’ Compensation Act.  Although you do not need an attorney to file a claim, proper representation from the beginning of the process will help guarantee that the insurance company does not put you at a disadvantage. The Workers’ Compensation Statute has set fees that attorney’s may charge and in certain situations, requires that the insurer pay your attorney’s fee.