Workers’ Comp FAQ
1. What is workers’ compensation?
When an employee is injured while performing work-related duties, the accident is considered to have arisen out of the course of the worker’s employment. Work-related injuries entitle the employee to workers’ compensation benefits, which are dictated by the Massachusetts Workers’ Compensation Act, M.G.L., Chapter 152. The statute is governed by the Department of Industrial Accidents.
2. How many (DIA) Department of Industrial Accidents locations are there in Massachusetts?
The main office is in Boston at 600 Washington Street, seventh floor. Other offices are in Worcester, Springfield, Lawrence and Fall River. Where you live determines which office handles your claim.
3. If I am injured at work, what do I do?
First, immediately report the injury to your employer. Next, complete a written accident report as soon as possible. Seek immediate medical care at a facility of your choosing. The medical facility will ask what happened. Give details of how and where your accident occurred. Keep a written list of the names, telephone numbers and addresses of all individuals who have witnessed your accident.
4. What if I am contacted by the employer’s workers’ compensation insurance company?
Our advice would be to contact a lawyer right away and to never give a recorded statement without first contacting an attorney. Also, never sign documents without a lawyer reviewing them and certainly never sign documents that you do not understand.
5. After my work injury, how long will it be before I begin receiving workers’ compensation benefits?
Your employer’s obligation to report your injury to their insurance company and to the DIA accrues if you are unable to receive full wages for five or more days. This is known as the employer’s first report of injury. The workers’ compensation insurance company then has up to 14 days from receipt of the employer’s first report of injury to investigate your claim and to decide whether it will deny or pay it. The insurance company must notify you of its decision in writing within this 14-day period. It is important to note that even if the insurer elects to make workers’ compensation benefit payments at this time, it still has the right to terminate your benefits at any time within the first 180 days from the start of your disability. It must give you seven days’ notice of your termination.
Some employees initially attempt to handle their workers’ compensation cases without an attorney from the beginning in light of the fact that sometimes the insurer puts them on comp at the outset of the claim. Even if that’s the case, complications can arise later if benefits suddenly cease, and the employee scrambles to hire a lawyer. It is best to hire a lawyer from the onset of the case to help prevent any sudden and unjust termination of benefits.
6. How do I pay for a workers’ compensation lawyer?
You do not pay your lawyer from your private funds and do not have to worry about “upfront payments.” The attorney’s fees are governed by the Workers’ Compensation Act and are paid from the insurance company proceeds.
7. The insurer has denied my claim or terminated my benefit prior to the 180-day period. Now what do I do?
Once again, our advice is to consult with an attorney who specializes in workers’ compensation cases. Many attorneys advertise that they handle workers’ compensation cases, but that does not mean they specialize in this area of law. As stated above, there is no charge to call Ellis Law Offices or meet with us for a free consultation. Our fees are dictated by the Massachusetts Workers’ Compensation Act.
8. The insurer has decided to pay me workers’ compensation benefits. How much will I be paid?
If you are declared partially disabled, an administrative law judge will determine what your benefit rate will be by deciding how much you could earn post-injury as compared to your preinjury average weekly wage. Your weekly benefits will be determined by calculating 60 percent of the difference between your earning capacity and your average weekly wage. If you are found to be totally disabled, you are entitled to 60 percent of your average weekly wage. If you are found to be totally and permanently disabled, your benefit rate will be two-thirds of your average weekly wage. Also note that you may be entitled to a cost of living adjustment. The IRS tax code and Massachusetts tax law declare that all workers’ compensation benefits are tax-free.
9. I am receiving workers’ compensation benefits, but how long will I be entitled to receive them?
If you were injured after Dec. 24, 1991, then you are eligible to receive temporary total benefits for up to 156 weeks and partial disability for up to 260 weeks. However, note that the combination of temporary total benefits and temporary partial benefits cannot exceed seven years, which is 364 weeks.
10. I am receiving comp benefits, but I want to settle my case. Does the insurance company have to settle my case?
No, the insurance company does not have any obligation to settle the case. When the insurer elects to settle, it is called a lump-sum settlement. In most cases, an experienced workers’ comp attorney can increase the likelihood of the case settling. When the insurance claims adjuster is also well-experienced, usually a meeting of the minds occurs where it is in the interest of all parties to settle. Nonetheless, it is important to consult with an experienced workers’ comp attorney prior to accepting or even negotiating a settlement. There are numerous issues to consider prior to settlement. Have you used vocational rehab? What is the status of your outstanding and future medical bills? How does the settlement affect these bills as well as other benefits? Only an experienced workers’ compensation attorney can accurately assess for you if the settlement is fair, reasonable and in the employee’s interest.
11. My case has been settled. Will the insurance company continue to pay my medical bills?
Not necessarily. It depends upon whether the settlement was made with “liability,” which would make the insurance company responsible for paying future medical bills that are reasonable and related to the workers’ compensation accident.
12. My injuries are severe enough where my doctor has informed me that I can never return to that type of job. What are my rights now that I am unable to do my prior job?
According to the Massachusetts Workers’ Compensation Act, you have the right to vocational rehabilitation. This counseling is administered through the Department of Industrial Accidents. It will first assess if you are suitable for vocational rehab. If so, you may be eligible for job placement or for retraining. The goal here is to place you into a new occupation that will pay close to your preinjury wages.
13. One year ago, I was injured at my job. My condition is now getting worse. Is there a time limit for me to file a workers’ comp claim?
Yes, an employee has four years from the date the employee first became aware that the disability arose out of his or her employment.
14. I have suffered a work injury and have learned my employer does not have workers’ compensation insurance. Can I still collect comp benefits?
Yes, in Massachusetts, a trust fund has been established. A series of preliminary requirements t must be met prior to filing such a claim. Contact Ellis Law Offices to see if you qualify to make a claim with the trust fund. It is also important to note that you, as the employee, may be entitled to bring a tort action against your employer.
15. The insurance company has mailed me a letter instructing me to appear for a medical exam. Do I need to go?
Yes, you do. The employee has the duty to appear and cooperate with the medical exam. If you refuse to appear for such an exam or obstruct it by failing to cooperate, your weekly benefits may be suspended or forfeited. If you or your attorney requests a copy of the medical report, the insurer must send a copy as well as reimburse you for all reasonable travel expenses.
16. The insurance company has asked that I switch doctors. I like my present doctor that I have chosen. Do I have to switch?
No, you don’t have to switch doctors. You have the right to treat with a doctor of your choice and the insurer cannot tell you where or with whom you must treat. In Massachusetts, to see a specialist, the doctor who is referring you, i.e., your primary care physician, must make a written referral. This referral needs preapproval via the utilization review department at the workers’ compensation insurance company.
17. Can I receive Social Security benefits if I am already receiving workers’ compensation benefits?
Yes, you can apply for and receive Social Security benefits while simultaneously receiving workers’ compensation benefits. Please note that the amount of Social Security Disability benefits you receive may be affected by your workers’ compensation benefits.
18. I am a union worker and was injured while resurfacing a state road. Can all my fringe benefits be looked at when determining my average weekly wage?
Yes, in Massachusetts, under the Workers’ Compensation Act, your employer contribution to your health insurance, welfare, pension and annuities should be included when calculating your average weekly wage.
19. When I was injured, I also had a second part-time job. Because of my work injury at my first job, I can no longer perform at my second job. Does having two jobs increase the benefits I am entitled to?
Yes, the Massachusetts Workers’ Compensation Act looks at all insured employers and then totals your wages earned from both jobs to calculate your average weekly wage.
20. I suffered a severe burn to my face at work and am left with a permanent scar. Is the scar compensable?
Yes, the Massachusetts Workers’ Compensation Act allows benefits for permanent scarring, which is scar disfigurement for scars to the hands, neck and face. Unfortunately, the act does not allow compensation for scarring to any other parts of the body.
21. I suffered a dislocated shoulder with torn ligaments at work. I am also left with permanent loss of function. Is this compensable?
Yes, the Massachusetts Workers’ Compensation Act, Chapter 152, Section 36 allows specific compensation for losses of function to various parts of the body. An experienced workers’ comp attorney will see to it that you get properly compensated for any permanent loss of function suffered in your work injury.
22. I was injured at my job by the negligence of another worker. I have learned that this worker is employed by another company. In addition to my workers’ compensation claim, can I bring a second action against this other worker and his employer?
Yes, this kind of action is called a third-party action and is governed by tort law. These types of actions are brought when the individual who caused your injury is not an employee of the company you work for. The other company may be sued for the negligence of its employee who caused your injury. Third-party claims allow for a wider array of damages than the comp act allows. Third-party actions most importantly allow for damages based on pain and suffering. Third-party cases are not limited to the factual scenario above. For example, you work in a factory using dangerous machinery and a machine malfunctions, causing you the loss of a limb. If the employer hired an outside company to service the machine, and it serviced it in a negligent manner that caused the injury, then the service company can be sued via a third-party action. Another example is if you or the employee who caused you injury is a temp worker, then third-party claims often arise. Many attorneys who are not experienced in both workers’ comp law and third-party law overlook third-party claims, which greatly reduces your ability to be fully and fairly compensated for your case.
Contact Ellis Law Offices, One Of The Top Massachusetts Law Firms In Workers’ Compensation And Third-Party Cases
Ellis Law Offices has been handling workers’ compensation and third-party negligence cases for over 50 years and is one of the premier law firms in this field. We have represented thousands of injured workers throughout Massachusetts, including Worcester, Boston, Fitchburg, Southbridge and Springfield. You may contact us by email or telephone. For your convenience, home and hospital visits are available upon request.