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Workers' Compensation Law - FAQ

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What is workers' compensation?

The original Workers' Compensation Act came into existence in Massachusetts in 1911. It replaced a system in which workers who were injured on the job were required to file lawsuits and prove negligence on the part of their employers before they could recover anything. In the old system, large numbers of injured workers were left without a remedy because either the injury was not the result of the employer's negligence or it took so long to pursue the lawsuit that the employee was unable to support himself or herself while waiting. The Legislature decided that this situation was not tolerable. The Legislature created a system in which every worker who received an injury "arising out of and in the course of his employment" would be entitled to a schedule of benefits which provide support to the injured worker during disability and afford the worker some compensation for permanent injuries and medical expenses. Today, the Workers' Compensation Act makes it unnecessary to prove that the employer was negligent. In the new system, the injured worker need only show that the injury happened at work.

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What should I do if I am injured at work?

Every injury, no matter how seemingly insignificant, should be reported to your supervisor, the medical department at your company or shop, or some other person in authority. Most employers have a system of filing written reports so as to document accidents or injuries. However, if your workplace does not have such a system, you should insist that whomever you report the matter to write it down and provide you with a copy. You should also make note of any witnesses.

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What if I need medical attention?

Unless your employer or the workers' compensation insurer has entered into what is called a "Preferred Provider Agreement," then you are entitled to seek medical attention from whatever health care provider that you believe to be appropriate. If a "Preferred Provider" exists, you may be required to have your first treatment at the "preferred" facility, after which you can change to the physician of your choice. Once you choose a doctor, you may need permission from the insurer or the Department of Industrial Accidents to change to another doctor specializing in the same field of medicine. In addition, all continuing medical treatment is now subject to "Utilization Review" under which the insurance company hires a private agency to decide whether tests, surgery, physical therapy, or other proposed care should be approved. If treatment is disapproved you may appeal to the Department of Industrial Accidents by filing a claim that asks a judge to approve the treatment.

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What if I decide to see a chiropractor?

Chiropractic expenses are covered under the Workers' Compensation Act subject to the same limitations as discussed in the preceding answer.

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Why am I having so much trouble finding a doctor who will take workers' compensation cases?

The amount that a doctor can charge in workers' compensation cases is strictly regulated and in most instances is considerably less than that doctor may be able to charge to a private health insurer or self-paying individual. In addition, the treatment of patients under workers' compensation involves problems of obtaining approval for specific treatments, extra time and effort devoted to paperwork, and occasional involvement in litigation. Many physicians, particularly those in highly skilled specialties such as orthopedics or neurosurgery, have discontinued or restricted the numbers of cases that they will take under workers' compensation.

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How do I find a doctor who will treat me?

Fortunately, not all physicians have turned their backs on workers' compensation recipients. If you are a member of an HMO, the best place to start is your primary care physician who may be able to refer you directly to a provider within the area of specialty that you need. You might also secure an appropriate referral from an emergency room. Probably the best source of information as to the availability of doctors who will treat patients under workers' compensation is a qualified workers' compensation attorney who deals with these issues on a daily basis and can probably provide you with a list of doctors who he or she knows will accept patients under the Workers' Compensation Act.

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My employer tells me that I am required to be treated only at the Occupational Medicine Clinic to which it referred me. Why can't I see my own doctor?

You can. As noted earlier, although you may be required to report for one visit to a clinic designated by your employer, the choice of medical treatment thereafter is entirely yours. While these employer-designated clinics do perform a valuable service in making treatment available for short-term types of injuries, you should know that many of these facilities operate like a "company doctor" and, as such, are often more interested in satisfying an employer's needs than in fairly and objectively treating the patient. If you suspect that this is the case, you have every right to see a doctor of your own choice.

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Is the insurance company nurse entitled to come with me to my doctor's visits?

No. There is no provision in our workers' compensation law that requires that you cooperate with a so-called "medical management nurse." Not only can you stop the nurse from coming to the doctor with you, but you are completely within your rights to tell the nurse not to work on your case anymore. Sometimes these nurses are helpful in securing access to doctors, medication, or medical appliances. However, some unscrupulous nurses will attempt to interfere with the doctor-patient relationship, and may go so far as to misrepresent certain important facts about the availability of light-duty work and so forth in an effort to persuade your doctor to release you from care before the doctor would ordinarily do so. A nurse who is inclined to do this is not working in your best interest and should be discharged.

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Can I be reimbursed for travel expenses for medical care?

Any travel that you undertake to secure medical treatment should be reimbursed by the insurance company on a per mile basis. Currently, insurers are reimbursing at the rate of approximately 45 cents per mile. This includes travel to the doctor's office, physical therapist, hospital, independent medical examination, or even travel to the pharmacy to purchase medication.

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What can I do if the insurance company refuses to allow me to see a doctor or to have prescribed treatment?

Sometimes unscrupulous claims adjusters will deny you access to reasonable and necessary medical treatment as a means of limiting your ability to prove continued incapacity. They will tell you that you can't see a doctor and then discontinue your benefits because you do not have a doctor's opinion that supports disability. This is unfair, unreasonable, and probably illegal. If this happens, you have every right to file a claim with the Department of Industrial Accidents to force the insurer to comply with its legal obligations.

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How long must I be out of work before I am entitled to collect disability benefits from workers' compensation?

If you lose more than five (5) days from work, whether or not they are consecutive, then you are entitled to receive weekly compensation benefits. If the total period of your disability is less than twenty-one (21) days, then your entitlement to benefits begins after the fifth day of disability and is not retroactive to the first day. However, if you remain out of work for twenty-one (21) days or more, then you will receive benefits from the first day that you began losing time.

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What happens if I don't get paid right away?

The law requires that your employer file a report of your injury with its workers' compensation insurer and the Department of Industrial Accidents. This must be done within seven (7) calendar days of the time that your employer is aware that you have been injured and have been incapacitated for more than five (5) days. Once the workers' compensation insurer receives notice of your injury from your employer, it must either begin to pay benefits or issue a written denial of compensation within fourteen (14) days.

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How do I know that my employer has filed the claim on time?

The only way to be sure is to see the claim form. You should also find out the date on which the claim form was sent to the insurance company. Some companies attempt to avoid paying penalties by back date-stamping materials so as to make it appear that they are complying with the time deadlines when they are not. Under the workers' compensation statute, your employer is required to send you a copy of its notice to the insurer. Demand one if you don't receive it.

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What happens if the insurance company does not comply with the time deadlines by either paying me or denying me payment within fourteen (14) days?

The law requires that under those circumstances, the insurer must pay you a penalty of $200.00. If the delay extends beyond sixty (60) days, the insurer must pay an additional sizable penalty to the Department of Industrial Accidents and that penalty can range from $2,000.00 to $10,000.00, depending upon the length of the delay.

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At what point should I hire a lawyer?

You are well advised to have professional advice as early as possible so that you are fully aware of your rights at every stage of the proceedings. This is particularly important in view of ongoing and continuing changes in the law. You absolutely cannot rely on the insurance company to give you accurate advice as to your rights under the Workers' Compensation Act. It is important to know that attorneys' fees are strictly regulated by the law and that under no circumstances is an attorney allowed to charge a client directly for his or her services in a workers' compensation case. In most instances, all attorney fees charged by lawyers for representing employees are paid by the insurance company, either according to a schedule defined by the law, or as a percentage of a negotiated lump sum settlement. In some limited cases, a portion of the attorney's fee could be deducted from an amount of benefits awarded by an administrative judge.

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What if the lawyer that I go to tells me that I have to pay him or her a retainer or give the lawyer a fee from my own money?

The law very strictly regulates attorneys' fees. If a lawyer asks you to pay a fee or a retainer, then he or she is probably violating the law and you should bring that to the lawyer's attention. If he or she persists, you should contact another lawyer.

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What if the insurance company sends me a denial form?

The first thing that you should do is check the date on the denial form and retain the envelope in which it was sent. These may become important to you if a penalty is at issue. The form that you will receive should specifically state the reasons that the insurance company has denied your claim. Thankfully, the insurance company is not the final authority in these cases and you have a right to file a claim with the Department of Industrial Accidents. This adjudicative department will eventually assign an administrative judge to hear your case and decide whether you are entitled to receive compensation benefits. It is very important that you document your claim for workers' compensation benefits. You should save a copy of any accident report, disability note, first aid register, or medical document which can be submitted with your claim or used by your attorney, if need be, in a proceeding at the Department of Industrial Accidents.

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What happens after I file my claim?

Usually, within two to three weeks, your case will be assigned for a conciliation, which is a meeting between you, your lawyer, a representative of the insurance company, and a Department of Industrial Accidents conciliator whose job it is to attempt to encourage the parties to voluntarily resolve their differences and avoid the necessity of bringing the case in front of a judge. The conciliator will listen to you and will review and place in the file any medical reports or other documents which are offered to him or her in support of your claim. The conciliator will also receive similar information from the insurer. In addition, if there is an issue as to the extent to which you are disabled, then representatives from both sides will be asked to submit a document which represents the "last best offer" of compensation. Under this procedure, if you and your attorney agree that your disability is only partial, and that you can perform some type of work, then at the time of the conciliation, you might offer to accept less than total compensation benefits. The insurer would also be required to submit a similar proposal.

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Can the conciliator order the insurer to pay me compensation?

The present state of the law is such that the conciliator can only make a recommendation to the judge who will eventually hear the case. The conciliator does not have the authority to make any binding orders awarding or denying compensation. That responsibility is the sole province of an administrative judge of the Department of Industrial Accidents.

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What happens if we're not able to work anything out at the conciliation?

At that point, the conciliator will record his or her recommendation in the file and send it back to Boston where your matter will be assigned to a judge for a proceeding known as a conference.

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How long will it take for my case to be assigned to a judge?

The worker's compensation law currently requires that once a conciliator refers the case to the Industrial Accident Board, it will be assigned to a judge "immediately." As a practical matter, the time from conciliation to conference is entirely dependent upon the number of cases awaiting assignment. When the backlog is small, you can expect a conference in as little as a few weeks, but the delay has been as long as six months during very busy periods.

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What happens when the conference date arrives?

A conference is an informal proceeding at which the judge is empowered to make an enforceable order that the insurer pay benefits. The judge will enter an order if he or she receives documentation in the form of medical reports or other information which persuades the judge that payment of compensation is appropriate. If persuaded, the judge will prepare a document called an "Order of Payment." If not sufficiently convinced by the documents and the arguments that he or she hears, the judge will issue a document called a "Denial of Compensation." If the "last best offer" procedure was used at the conciliation, then the judge is required to choose between the offer made by the insurer and the offer made by the employee. The judge may also choose some figure other than the ones submitted by the parties, so long as the judge explains reasons for doing so.

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Can I appeal if I am not satisfied with the results of the conference for my worker's compensation claim?

Either party may appeal the decision of a conference judge by requesting a hearing which is a formal trial at which witnesses testify under oath and are cross-examined. If a conference order relating to a medical issue is appealed, then the party requesting the appeal must pay a filing fee of $350.00. This fee will be used to pay for an "impartial physician" to examine you. Once this examination has been conducted and the impartial doctor's report has been sent to the judge, no other medical evidence will be admissible at the hearing unless the judge decides that the medical issue before him is unusually complicated or that the report of the impartial doctor is inadequate.

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If the judge orders the insurance company to pay compensation at a conference and the insurer appeals, do I have to wait for the hearing to take place before I receive the worker's compensation benefits under the order?

No. Even if the insurer disagrees with the Order of Payment, it must comply with that order and pay benefits while the appeal is pending.

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What worker's compensation benefits will I receive if the company either pays me voluntarily or is ordered to pay by the Department of Industrial Accidents?

If the date of your injury is on or after December 23, 1991, and if you are totally disabled, the insurer must pay you weekly compensation which equals sixty (60) percent of your average weekly wage, so long as that figure does not exceed the maximum amount payable. The weekly maximum is equal to the average weekly wage in the Commonwealth as determined on October 1 of each year by the director of the Department of Employment Security. The weekly maximum has increased steadily each year and is currently in excess of $600.00 per week. For injury dates prior to December 23, 1991, your rate is 66 and 2/3 percent of your average weekly wage, subject to the same maximum.

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Do I have to pay taxes out of my workers' compensation benefits?

Workers' compensation benefits are not subject to federal, state, local, or social security tax.

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How does the insurance company determine my average weekly wage?

In general, the average weekly wage is determined by adding up the previous 52 weeks of salary and dividing by 52. If your term of employment has been less than a year, but is still more than a few weeks, then you simply add up the total amount that you received during the entire period of your employment and divide by the total number of weeks that you worked. When you are adding up these weeks, be sure to include weeks in which you worked overtime, received additional commissions, or other benefits. Average weekly wage includes all of these things and is not limited to a standard 40 hour week. If, however, the period that you are using for your calculation includes some clearly unusual weeks in which you received no salary or very little, then you should not include those weeks in your calculations, since they will unfairly skew the average downward and not represent the true average weekly wage.

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How do you calculate the average weekly wage if you have only worked a few days for this employer?

The law provides that under those circumstances, the wages of another employee in a similar job or situation to yours may be used to calculate your average weekly wage. If this is done by an insurance company, you must be very careful that they choose an employee whose position is truly similar to yours and is not chosen so as to provide the lowest possible average weekly wage.

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The insurance company has sent me a letter saying that I should report to a so-called "independent medical examination." Do I have to go?

Generally, yes. The law requires that after a claim has been filed and from time to time thereafter, the insurer may require that the employee report to an examining physician of the insurer's choice who will provide the insurer with a report of your condition. Although you usually should report to these examinations, they must be at reasonable times, within a reasonable distance from your residence, and spaced at appropriate time intervals. A company cannot make you travel too far or make you report to an excessive number of examinations for purposes of harassment or inconvenience.

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I am very nervous about going to this "independent examination." Do you have any advice for me?

It is quite natural to be nervous about these examinations. Unfortunately, many of the doctors who perform them do not go out of their way to make you feel more comfortable. Increasingly, these examinations are conducted by companies who employ doctors as independent contractors. You may therefore not be seen by a doctor who is actually practicing medicine, but who is retired and is using these examinations to supplement his retirement income. These companies market themselves to insurers. Although many of these examiners try very hard to provide an objective opinion, there are some who may be inclined to be less than fair. All that you can do to minimize the prejudice that can result from these examinations is to be sure that the doctor is made aware of all of the symptoms that you are experiencing and that you keep track of the amount of time that is spent by the doctor with you. You should also be sure to distinguish the amount of time that he spends taking your history from the amount of time that he actually spends examining you. Often the actual examination is conducted in no more than a couple of minutes. It would be wise to contact your lawyer to advise him or her that you have been ordered to go to an examination. He or she may be able to give you some additional information about the doctor who will be examining you and tell you types of things to look out for at the examination. It is also a good idea to bring someone with you to corroborate your observations. That person may be prohibited from actually entering the examination room with you, but could certainly be helpful in timing the examination.

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If the insurance company's examining doctor says that I have to go back to work and I do not believe that I am able to return, do I have to go back anyway?

No. Under most circumstances, the decision as to your capacity to return to work should be made by you in consultation with your attending physician. As was mentioned earlier, the insurer's examiner is hired by the insurer to provide the insurer with information, but the examiner cannot force you back to work before you are ready to go. One important exception to this rule is when the examination is conducted not at the request of the insurance company, but by an impartial physician chosen and appointed by the Department of Industrial Accidents. The report of such a physician will be very important, and his or her determination as to the extent of your disability could effect your right to continuing benefits.

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Under what circumstances can the insurance company stop my checks?

During the first 180 days that you are receiving benefits, your payments are on a so-called "without prejudice" basis. This means that although the company is paying you a weekly amount, they are not admitting liability for your injury. During this 180 day period, the insurer may discontinue your checks by giving you seven (7) days notice of its intention to do so, and by providing you with a description of the reasons for stopping your compensation. The insurer must also make you aware of your right to appeal its decision to the Department of Industrial Accidents. If you receive compensation for a period in excess of 180 days, or your benefits are the result of an order or decision of the Industrial Accident Board, then your claim is deemed to have been "accepted." Benefits in an accepted case may not be discontinued unless one of the following things happens:

  • •You sign a Discontinuance Agreement allowing the company to stop your checks; or
  • •The company is able to persuade a judge of the Department of Industrial Accidents that your benefits should be discontinued or modified. This can be done only after a conference which, as mentioned earlier, will be scheduled from several weeks to several months later, depending upon the size of the backlog; or
  • •You return to work; or
  • •Your attending doctor or an impartial physician appointed by the Industrial Accidents Board has written a report saying that you are able to return to your former job or a job for which you are reasonably qualified and your employer provides a written confirmation that such work is available.

Benefits may also be terminated by the company when the maximum amount of payments for a particular type of benefit has been exhausted. Payments may be suspended if you are incarcerated or if you refuse to submit to an examination by a physician chosen by the insurer or if you fail to provide periodic reports of earnings when requested by the company. If the insurance company stops your checks under any circumstances other than those listed above, it has committed what is called an "illegal discontinuance" and the insurer would be subject to substantial penalties.

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What if I am able to go back to work but still have some pain, and I am not able to make as much money as I was earning before the injury because of that pain or limitation?

Under those circumstances, the law provides that you can receive Partial Incapacity Compensation. For workers who were injured before December 23, 1991, the amount of partial compensation is calculated by subtracting the new average weekly wage that you are earning after you returned to work from the average weekly wage you had at the time of your injury and multiplying that figure by 2/3. For example, if your average weekly wage at the time of the injury was $600.00 and you were only able to earn $300.00 after you returned to work because of some continuing difficulty, then your partial compensation rate would be ($600.00 - $300.00) x 2/3 = $200.00. If you were injured on or after December 23, 1991, then your partial compensation rate would be calculated by subtracting your new average weekly wage from your old average weekly wage and multiplying by 60 percent. For example, the partial compensation rate for a person injured on or after December 23, 1991 would be ($600.00 - $300.00) x 60% = $180.00. The workers' compensation statute in effect on or after December 23, 1991, imposes an additional limitation upon partial incapacity benefits in that they may not exceed 75 percent of the employee's total compensation rate. So for example, if an employee's total compensation rate is $500.00, and 60% of the difference between your old average and your new average results in a figure which is in excess of $375.00 (which is 75% of $500.00) then the maximum amount that you may receive in partial compensation is $375.00.

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What if I try to return to work but discover that I can't do it?

The law provides that you are entitled to a trial period of return to work of twenty-eight (28) calendar days. If during that period of time you discover that you are not able to continue, and you give appropriate notice to your employer and insurer by certified mail within twenty-one (21) days thereafter, then the insurance company must begin your benefits again without the necessity of your having to file a new claim for compensation. The insurance company's failure to voluntarily reinstitute benefits will result in the imposition of severe penalties.

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Is there a limit as to how long I can receive benefits?

Weekly benefits are essentially divided into three separate groups and the duration of time that you are entitled to receive those benefits is determined by the date on which you were injured. Generally, people who were injured on or after December 23, 1991, the effective date of the most recent change in the Workers' Compensation Act, will receive less weekly benefits for a substantially shorter period of time.

Temporary Total Disability: Temporary total benefits are paid for total disability for as long as that disability lasts or until the maximum amount payable for this category is reached. For people injured before December 23, 1991, the maximum amount payable is 260 weeks. For injury dates on or after December 23, 1991, the maximum number of weeks is 156.

Permanent and Total Disability: If the employee continues to be totally disabled after reaching the maximum amount payable for temporary total incapacity as enumerated above, then the employee would be entitled to receive further benefits for permanent and total incapacity. Most insurers will not voluntarily pay those benefits without being ordered to do so by the Industrial Accident Board, which would take place following a proceeding at which medical evidence is introduced to support the argument that you are totally disabled and that disability is likely to persist into the foreseeable future. If you are awarded permanent and total disability benefits, then your weekly compensation rate, if it had been previously calculated at 60 percent of your average weekly wage, would increase to 2/3 of your average weekly wage. You would also be entitled to cost of living adjustments to your weekly benefits which will be outlined in greater detail below.

Temporary Partial Disability Benefits: As mentioned earlier, sometimes an employee is able to work but the residual effect of his injury has made it impossible for him to earn as much as he had previously earned. When this happens, the employee is entitled to receive partial incapacity benefits. For people injured before December 23, 1991, partial incapacity benefits are payable for as long as that incapacity lasts or 600 weeks, whichever comes first. For later injury dates, partial compensation is paid for no more than 260 weeks. However, in certain limited circumstances, this period may be increased to 520 weeks. It is important to note that for injury dates on or after December 23, 1991, the total amount payable for both partial and total incapacity compensation cannot exceed 364 weeks (seven years).

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If my weekly benefits stop for some reason, am I still entitled to see the doctor?

Your right to medical benefits exists irrespective of whether you are receiving weekly compensation checks. The insurer is responsible for your medical expenses even after your weekly benefits have expired or you have settled by way of a lump sum. The only requirement, of course, is that the medical treatment is necessary and related to your original industrial accident.

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What if I return to work for a few months and my condition gets worse?

If your condition is the result of the natural deterioration associated with your earlier injury then you would be entitled to benefits based upon that original injury. If your condition was aggravated by something that happened at work after your return, then instead of being associated with the original accident, there is a strong possibility that you have what the law would define as a new injury which should be treated as a completely separate claim. In the past, the amount of benefits to which employees were entitled tended to increase each year under the workers' compensation statute. Beginning with the Workers' Compensation Act "reforms" which became effective in December of 1991, benefits have been sharply reduced. Consequently, if you sustain a true aggravation or new injury after the effective date of the new law, then it is likely you will come under the new and significantly more limited benefit structure that was instituted as a result of these "reforms." It is strongly recommended that people who experience a series of aggravations like this seek competent and qualified workers' compensation counsel to advise them in these very complicated situations.

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I am able to work but I am left with a permanent loss of function and a scar as a result of surgery. Is there a provision to compensate me for these losses?

The law provides a schedule of payment for what it calls "specific compensation." This includes both total and partial loss of bodily functions or senses. These benefits are also payable for scarring or other disfiguring consequences of an industrial accident. In cases of injuries prior to December 23, 1991, scarring on any part of the body will result in the entitlement to benefits for disfigurement. For injury dates thereafter, only scarring which appears on the face, neck or hands will result in the payment of specific compensation. The acceptance of a payment for loss of function and/or disfigurement is not a settlement of your case but is a payment of one of the series of benefits that is available to injured workers. Your right to continued receipt of weekly benefits and medical expenses is not affected by the acceptance of a loss of function or disfigurement payment.

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My doctor has told me that I am never going to be able to return to heavy employment, which is all that I have known in the past. Is there anything that can be done to help me to prepare for lighter work?

Every injured worker who has been incapacitated for any significant amount of time should be contacted by the Department of Industrial Accidents' Office of Education and Vocational Rehabilitation. The role of its counselors is to determine whether injured workers are in need of vocational rehabilitation assistance and to direct them to the appropriate agencies or authorities. Because of the volume of open cases, these counselors are not able to contact everyone and the initial decision about whether or not you need rehabilitation services probably is best made by you in consultation with your lawyer. However, if you are contacted by the Office of Education and Vocational Rehabilitation and you fail to cooperate with them, your benefits may be reduced by 15 percent per week during the entire period of your failure to cooperate.

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Am I entitled to recover for my pain and suffering, inconvenience, or emotional distress related to my industrial injury?

The elements of damage that are enumerated in the question are not recoverable under the provisions of the Workers' Compensation Act. Those elements of damage are typically based upon a showing of fault on the part of some other party; workers' compensation benefits are payable to the employee regardless of whether the worker's injury is caused by the fault of someone else or was simply an unfortunate and unavoidable accident.

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What if my employer was negligent in causing my injury?

Simple negligence on the part of the employer does not make your situation any different from any other person injured in the course of employment. You are entitled to the full range of benefits permissible under the Compensation Act but you are not entitled to sue the employer for negligence. There are very rare situations in which the employer's conduct does have some bearing on the extent of the employee's recovery, but those situations require that the employee prove that he was injured as the result of "serious and willful misconduct" on the part of the employer. Serious and willful misconduct has been defined by our courts to mean conduct which is much worse than simple negligence. In order for the employee to prevail in this types of case, the employer's conduct must be so outrageous as to be nearly criminal. However, if the employer's conduct meets that standard, then the employee would be entitled to file an additional claim at the Department of Industrial Accidents which, if proven, would entitle the employee to receive twice the amount of benefits to which he would be entitled otherwise. This includes doubling of the weekly compensation rate as well as all other benefits including medical expenses under the Compensation Act.

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What if my injury was caused by the negligence of someone other than my employer?

The only persons who are immune from suit because of the Workers' Compensation Act are your employer and any fellow employees. If you are hurt because of the carelessness of someone other than your employer, you retain all of your rights to recover damages over and above the benefits payable under workers' compensation. If you recover damages by way of verdict or settlement from the negligent "third party," you must reimburse the workers' compensation insurer for whatever amount it paid to you, but all damages in excess of that amount may be kept by the employee. The compensation insurer is responsible for paying its share of your attorney's fees if you do recover damages from the negligent third party.

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What is a lump sum settlement?

A lump sum settlement is a voluntary agreement between the workers' compensation insurer and the employee under which the insurer agrees to pay a single sum of money to buy back all or part of its obligation to the employee. Prior to the change in the Workers' Compensation Act which became effective in November 1986, a lump sum settlement was a final resolution of the entire claim. That is still true in cases in which the insurer has never made any payments or acknowledged responsibility for the claim. However, where the insurer has paid compensation and has accepted liability for the injury, the parties cannot settle the employee's continued right to medical expenses and rehabilitation. These remain open forever so that even after the case has been settled, the insurer continues to be responsible for all medical expenses and rehabilitation costs that result from the original industrial accident. The 1991 amendment to the workers' compensation law now requires that before a lump sum settlement is approved, the employer must, in most situations, consent to the settlement.

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Can I force the insurance company to settle my case?

As indicated above, a lump sum settlement is a voluntary agreement between the parties to close a claim. Neither party can compel the other to enter into such an agreement but many times a lump sum settlement is advantageous to both the employee and the insurer. Employees have used the proceeds of lump sum settlements to finance the opening of their own businesses, continue their education, provide for the continuing needs of their families, or any other of a huge range of beneficial purposes. The obvious advantage to the insurer is that a settlement closes the claim and eliminates any uncertainty as to the employee's future rights.

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How do I know whether it's a good time to settle my case or whether the amount that's being offered is enough?

The timing and value of every lump sum is a function of a number of different factors. Consideration must be given to the employee's age, compensation rate, background, training, experience, education, medical condition, ability to return to former employment or adjusted work, and many other variables. Very often, insurers will approach an employee who is not represented by counsel with what appears to be a very attractive lump sum offer. They may even go so far as to threaten the discontinuance of compensation benefits if the lump sum settlement is not accepted. When properly scrutinized, these lump sum offers will invariably be in the best interest of the insurer and contrary to the best interest of the employee.

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How can I tell whether a settlement offer is in my best interest?

Since the average individual is involved in no more than a single workers' compensation claim in their entire lifetime, it is unlikely that you have the experience or the expertise to be able to evaluate all of the factors which must be considered in the lump sum settlement process. You are well advised to seek the assistance of a competent and experienced attorney who specializes in the handling of workers' compensation claims.

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How do I select the right lawyer?

Workers' compensation is a very complicated process. In order for an attorney to properly represent clients at the Department of Industrial Accidents, he or she must be thoroughly knowledgeable in not only the intricacies of the Workers' Compensation Act, but also the complex administrative processes employed at the Department of Industrial Accidents. In addition, the attorney must be well versed in the medical issues which are very often the most important element of the workers' compensation claim process. Further, the lawyer should have developed some familiarity with the personalities of the individuals with whom he or she will be dealing at the insurance company and the Department of Industrial Accidents. You are well advised not to go to the first name that you see in the yellow pages or even the firm that might simply hold itself out as specialists in workers' compensation in phone book listings or other advertisements. If you ask people who have some knowledge of the workers' compensation system, including your family lawyer, people involved in organized labor, your physician, or other individuals who you know have been previously represented by counsel before the Industrial Accident Board, you are likely to hear the same name or law firm mentioned more than once. If that is the case, you have probably identified a law firm that has deservedly established a reputation before the Department of Industrial Accidents.

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I've had occasional back pain over the years and have been told by my doctor that this is the result of the natural aging process. My back pain is now much worse following some heavy lifting that I did at work and I find myself unable to perform my regular duties. Will I be denied compensation because of the underlying condition of my back?

The mere fact that you had some pre-existing deterioration should not result in the denial of benefits. Under those circumstances, if the lifting injury was a major cause of your disability, you will be entitled to benefits. You will be subject to discontinuance of those benefits only when the insurance company can prove that the compensable injury is no longer a major contributing factor in your disability.

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Is there coverage for illnesses such as heart attack or stroke that happen at work?

In many cases, heart attacks, strokes and other medical conditions which appear to represent illnesses rather than injuries are nevertheless covered under the Workers' Compensation Act if the onset of the illness was due to some physical or emotional stress occurring on the job. This may be so despite the fact that the employee had a number of so-called "risk factors" such as cigarette smoking, obesity, high blood pressure, family history or other factors which might predispose him or her to such an event.

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I was injured while working at my part-time job and I am now unable to work at all.

Is my compensation rate limited to a percentage of the salary that I received from my part-time employer? No. The doctrine of concurrent employment allows your wages from both jobs to be considered in determining your average weekly wage. Your compensation rate will be based upon 60 percent of the total of your wages from both jobs, subject, to the maximum in effect on the date of your injury. For the person injured before December 23, 1991, your rate will be 2/3 of the combination of your wages.

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My boss does not deduct taxes or social security from my paycheck and he tells me that I am an independent contractor. If I am hurt on the job, will I be covered?

Workers' compensation benefits are only available to individuals who are "employees." This means that a person who is truly an independent contractor would probably not be entitled to workers' compensation benefits if he is injured in the course of pursuing his work as an independent. However, the mere fact that your "employer" calls you an independent contractor and does not take taxes from your paycheck does not mean that you are not an employee. In general, if you are subject to the control of your employer as to the means and methods that you use to perform your work and most other aspects of your job, then you are probably an employee regardless of what the employer calls you.

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After I was injured, I learned that my employer does not carry Workers' Compensation coverage. What can I do?

It is a criminal offense for an employer not to provide a policy of workers' compensation insurance. Unfortunately some employers choose to disobey the law. Since 1986, benefits to workers injured under these circumstances are paid from a fund managed by the Commonwealth of Massachusetts. The state would pursue your employer for reimbursement.

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I am currently receiving benefits for temporary total disability and I plan to apply for social security retirement when I turn 65. Will my compensation stop when I retire?

If you are permanently and totally disabled and are receiving benefits under that section of the law, then your receipt of social security retirement payments will not effect your right to continued compensation whatsoever. However, if you are receiving temporary total disability benefits and have been on compensation for two (2) years or more, then in order to continue to receive compensation beyond the age of 65, you must demonstrate to the Industrial Accident Board that you would have continued working beyond the age of 65 had you not been injured on the job. This contention must be proven by facts, circumstances and evidence beyond your testimony or that of your spouse.

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Under what circumstances will I be entitled to a cost of living adjustment?

Cost of Living Adjustments (COLAs) are payable to all persons who are entitled to permanent and total incapacity compensation as well as those receiving widow's (and widower's) benefits. The major exception to that rule is that no COLA will be paid to a person who is receiving social security disability benefits if the payment of the COLA would result in an adjustment of the social security checks.

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How are COLAs calculated?

Each October 1st, the Department of Industrial Accidents' director of administration determines the percentage change from the previous year in the average weekly wage in the Commonwealth, and that change will be the COLA. However, the law does not permit the annual COLA to exceed the lesser of the percentage change in the consumer price index or five (5) percent.

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