About Massachusetts Workers’ Comp
Frequently Asked Questions
These materials have been prepared by the Law Office of Joyce E. Davis for informational purposes only. They are not meant to be and should not be construed as specific legal advice. For assistance with a particular legal question, please consult a lawyer.
WHAT IS WORKERS' COMPENSATION?
Workers' compensation is a distinct area of Massachusetts law designed to provide benefits for injured workers. Attorney Joyce Davis is very knowledgeable about Massachusetts workers' comp law and familiar with the medical issues that often arise. She has successfully practiced in this area for many years and can tell you if you may be eligible for benefits. To qualify for Massachusetts workers' compensation benefits, you must show that your injury arose out of and in the course of employment and that you are disabled as a result of that injury. Your disabilities may include problems arising from repetitive motion, disease or emotional illness. The Massachusetts workers' compensation statute recognizes three different types of disability: 1) temporary total disability; 2) temporary partial disability and 3) permanent and total disability. You may also be entitled to coverage for your medical expenses. In case of death, the employee's family may be eligible for benefits. Under the law, there is no attorney's fee unless you are successful.
WHAT ARE THE DIFFERENCES BETWEEN TEMPORARY TOTAL, TEMPORARY PARTIAL AND PERMANENT TOTAL DISABILITY BENEFITS IN MASS. WORKERS' COMP?
In Mass workers' comp, temporary total disability means that you cannot perform any meaningful work. If you cannot work at your normal job, but can perform less strenuous work, you will generally not be considered totally disabled. You can receive temporary total disability benefits for a maximum of three years. The amount of temporary total disability benefits will be equal to 60% of your pre-injury average weekly wage up to a maximum amount set by the state.
Partial disability means that even though you are not capable of returning to your normal job, you can perform some "non-trifling" work. In Mass workers' comp, partial disability benefits are usually available for a maximum of five years. There are exceptions to this rule for employees who received more than two years of temporary total disability benefits or who have suffered a loss of 75% or more of any bodily function. The most you can receive in partial disability benefits is 75% of your total disability benefit. As with temporary total disability benefits, there is a maximum amount that you can receive in partial disability benefits.
Permanent total disability means that you will be unable to return to work in any "non-trifling" occupation for the foreseeable future. The long-standing rule in Massachusetts used to be that an individual could only receive permanent total workers' compensation disability benefits if he had been paid the full three years of temporary total disability benefits. In 2002, however, the Massachusetts Appeals Court handed down its decision in Rainey Slater's Case, 55 Mass. App. Ct. 326, holding that an injured employee did not have to exhaust his temporary total benefits before receiving permanent total disability benefits. Now, you can be eligible for permanent and total workers' compensation disability benefits so long as you have been on temporary total disability for some period of time and your situation has stabilized. If you have been found to be permanently and totally disabled, there is no limit on the length of time that you can continue to receive benefits. Permanent total disability benefits are calculated by taking 2/3 of your pre-injury average weekly wage. You may also be eligible to receive cost of living increases (COLA).
WHAT IS MY EMPLOYER'S RESPONSIBILITY WHEN I GET HURT ON JOB?
Section 6 of Chapter 152 of the Massachusetts General Laws requires an employer to submit a First Report of Injury form to the insurance company when two conditions are met: 1) the employer has received proper notice that the employee was injured and 2) the employee was unable to earn his full wages for at least five calendar days (including weekends and holidays). Under the statute, the employer has seven days (excluding Sundays and legal holidays) after he receives proper notice of an injury to file the form. If the employer violates this Section three or more times in a year, a penalty of $100.00 will be imposed for each violation. If the fine is not paid within three days of receipt of the bill, it is considered a separate violation.
If your employer fails to file the First Report of Injury in a timely fashion, you can contact the Office of Claims Administration at the Massachusetts Department of Industrial Accidents, telephone number (617) 727-4900. You can also consult with an attorney about filing a claim.
IF I CAN NO LONGER WORK, CAN I LOSE MY JOB?
The Massachusetts workers' compensation law does not prohibit an employer from terminating an injured worker who cannot return to work due to his/her work-related disability. There are, however, three caveats to this general rule. First, your employer may not be able to fire you if you would be able to perform the essential functions of your job with reasonable accommodations. Second, if you do lose your job because of your work-related injury, the Massachusetts workers' comp law requires that when you recover and when a suitable position becomes available, your employer must give you preference in hiring over other outside applicants. This preference will not apply if it conflicts with the terms of a collective bargaining agreement. Finally, your employer can not discharge you in retaliation for filing a claim or taking advantage of any rights granted to you under the Massachusetts workers’ compensation statute. Again, the terms of a collective bargaining agreement will control in the event that they conflict with this provision of the law.
IF THE INSURANCE COMPANY REFUSES TO PAY ME BENEFITS, WHAT CAN I DO?
If the insurance company does not begin paying you benefits after your injury, you can file a claim at the Massachusetts Department of Industrial Accidents ("DIA" or the "Board"). Your claim must be accompanied by medical records showing that you became disabled as the result of an injury at work. At the point that you begin thinking about filing a claim, you would be wise to consult with an attorney specializing in workers' compensation. area. In fact, if you appear at the Department regarding a claim that you filed, you will usually be advised to return with a lawyer.
WHAT HAPPENS AFTER I FILE A CLAIM AT THE MASSACHUSETTS DEPARTMENT OF INDUSTRIAL ACCIDENTS?
About a week after you file a claim, your case will be scheduled for a conciliation at the DIA office closest to where you live. The conciliation is an informal meeting between the attorney for the insurance company and you and/or your workers' compensation attorney. The conciliator is not a lawyer and cannot grant your request for benefits. Rather, the conciliator's job is to see if there is some way that the parties can reach an agreement. If an agreement cannot be reached, the conciliator will make sure that there is enough medical documentation to support your claim and will then forward it to the division of Dispute Resolution.
The next step in the Massachusetts workers' compensation process is a conference before an administrative judge who will make a decision about your claim. At the conference, your lawyer and the insurance company's lawyer will submit medical documentation and other information to the administrative judge and will make fairly brief presentations of about fifteen minutes each. Within a week or so, the administrative judge will issue a conference order awarding or denying your claim for benefits. It can take several months for a case to be scheduled for a conference after the conciliation. You can, however, file a request for a speedy conference with the Massachusetts Department. This will shorten the wait for a conference to about a month.
If either side is unhappy with the judge's conference order, it can file an appeal. If you are still disabled, you will usually be required to be examined by an impartial physician appointed by the Massachusetts DIA. Following his examination, this doctor will submit a report discussing his opinion about your disability. Your case will then be scheduled for a hearing before the same judge who presided over the conference. The hearing is a formal proceeding, like a trial. The rules of evidence apply and witnesses testify under oath. After the hearing, the administrative judge again issues a decision awarding or denying your claim for benefits. Unlike the conference order, a hearing decision is usually fairly long and will let you know the reasons why the judge made his decision. There can be a number of months between the close of evidence in the hearing and receipt of the judge's hearing decision. During this period, the terms of the conference order will remain in place. Thus, if the judge awarded you benefits at the conference, you will continue to receive them until the hearing decision is issued. In Massachusetts, the hearing is a procedure de novo, which means that the judge's decision can reverse his prior conference order. As a result, the insurance company may wind up owing you benefits retroactively. Conversely, you may turn out to have been overpaid, which will allow the insurance company to seek to recoup the excess payment.
After the hearing decision is filed, the parties have thirty days to file an appeal to the Reviewing Board at the Department of Industrial Accidents. Further appeals may be had to the Massachusetts Appeals Court and the Supreme Judicial Court.
WHAT IF I HAD A PRE-EXISTING CONDITION BEFORE GETTING INJURED AT WORK?
Even if you had a pre-existing problem, such as a bad back or arthritic knee, you can still be eligible for workers' compensation benefits if you sustain an injury at work. To receive benefits, you must present medical evidence showing that the work-related injury was "a major, but not necessarily predominant cause of disability." Significantly, the law does not require that the occupational injury be the major cause of your disability. Rather, it can be one of several major causes.
WHAT IF I MY INJURY IS EMOTIONAL RATHER THAN PHYSICAL?
The Massachusetts Workers’ Compensation Act does cover emotional disabilities. The burden of proof for employees asserting such claims is, however, greater than that imposed on employees with physical injuries. For post-December 23, 1991 injuries, an employee asserting a claim for a purely emotional injury must show: 1) that “the predominant contributing cause of ” his disability is the work-related injury and 2) that the work-related events were not “bona fide personnel actions. ” Bona fide personnel actions include transfers, promotions, demotions, or terminations. Presumably, however, transfers, promotions, demotions or terminations due to unlawful discrimination would not be considered “bona fide personnel actions.” Also, the fact that you were terminated or otherwise subject to a bona fide personnel action does not necessarily mean that you do not have a viable workers’ compensation claim. It is therefore usually advisable to discuss your case with an attorney.
WHAT IF MY EMPLOYER RETALIATES AGAINST ME FOR FILING A WORKERS' COMPENSATION CLAIM?
The Workers’ Compensation Act does not permit employers to retaliate against employees who have exercised their rights to file workers’ compensation claims. Employees who believe that they have been the victims of such discrimination can file an action in Superior Court against their employers. If the Court finds that your employer has violated this law, it can order your employer to pay your lost wages, grant you "suitable employment," grant you equitable relief and/or order your employer to pay your attorney's fees. The law provides, however, that “if any right in this section is inconsistent with an applicable collective bargaining agreement, such agreement shall prevail.”
IS IT POSSIBLE TO RECEIVE UNEMPLOYMENT COMPENSATION IF I AM ON WORKERS' COMPENSATION?
To obtain unemployment compensation, you must certify that you are available and looking for work. You therefore cannot get total disability benefits under the workers' compensation statute if you are also receiving unemployment compensation. It is possible to receive unemployment compensation and partial workers' compensation benefits under Section 35. If, however, you are successful in your claims for both workers' compensation and unemployment benefits, the unemployment benefits will be deducted from the amount of the workers' compensation benefits to which you are entitled. By way of example, if your Section 35 workers' compensation benefits are $400 per week and your unemployment comes to $200 per week, you would only be paid $200 in workers' compensation benefits.
WHAT IF I CHANGE JOBS AFTER I AM INJURED?
Changing jobs should not affect your ability to receive benefits. It may, however, change the insurer liable for those benefits. The law distinguishes between an ongoing problem (or recurrence) and an aggravation of a prior injury. A recurrence involves a condition which is continuous and usually requires ongoing treatment. An aggravation is considered a new injury. For example, if after the initial injury, you completed physical therapy and then felt completely better, a subsequent problem might be deemed to be a new injury. The rule is that the insurer for the first employer is liable for ongoing benefits for a "recurrence," while the successor insurer for the second employer is liable for an "aggravation." So, basically, if you change jobs, the worst that would probably happen is that you would find yourself in the middle of a fight between two insurers. One of them should be ultimately held liable.
