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Conciliation in Boston Workers’ Compensation Cases

If your Boston workers’ compensation claim is denied following a work-related injury, a claim for benefits can be filed with the Massachusetts Department of Industrial Accidents. Soon afterwards, the matter will be assigned to the DIA’s conciliation unit. This generally occurs within two to three weeks after the filing of your claim.

Conciliation is a means of encouraging those involved in a dispute to resolve the matter voluntarily among themselves, to avoid the time and expense of having the case brought before a judge. The conciliator presiding over the case makes non-binding recommendations to the parties to encourage cooperation and compromise.

The Massachusetts Executive Office of Labor and Workforce Development specifically recommends you hire an attorney for this procedure, if you have not done so already.

Our workers’ compensation attorneys at The Law Offices of Jeffrey S. Glassman will not allow our client’s right to fair compensation to be compromised – at this or any other phase of these proceedings.

Workers’ Compensation Process in Brief

The workers’ compensation claims process is triggered when an employee is injured at work. Whenever an accident occurs on-the-job, the first thing to analyze is whether the worker is an employee within the meaning of the Workers’ Compensation Act (WCA) of Massachusetts. M.G.L. Chapter 152, Section 1(4) defines an employee as a worker who performs a service for a contract of hire, unless they fit into one of the following exceptions:

  1. Masters and seamen on vessels engaged in interstate commerce;
  2. Professional athletes with special contracts;
  3. Real estate agents;
  4. Certain types of commission based salespersons;
  5. Taxi drivers who lease their vehicles from a taxi company;
  6. Certain jobs that are governed by other federal statutes, such as those on the railroad.

There are a few other exceptions, but for the most part, if you work for someone other than yourself, and that person is considered your boss, you are considered an employee for purposes of obtaining workers’ compensation benefits in Boston.

Injuries should be reported as soon as possible to your employer so that an incident report can be generated and so you can get the proper medical attention. The company will have seven days to notify its workers’ compensation insurance company about your injury, and the insurance company then has 14 or 30 days (depending on the circumstances) to approve the claim and pay benefits, or to issue a denial notice.

If the workers’ compensation insurance company denies your case, you can file a claim with the Department of Industrial Accidents (DIA), at their Boston office. There are four other DIA offices around the Commonwealth if you do not live in the greater Boston area. They are located in Fall River, Springfield, Lawrence, and Worcester. Our Boston attorneys can assist with claims in any of the DIA locations.

The Aim of Conciliations

After you file a claim with the DIA, the first thing that happens is you receive a notice in the mail with a date for a conciliation. The conciliation is an informal meeting between the claimant and his or her attorney, the insurance company and their attorney, and the conciliator who is paid by the DIA. The goal of the conciliation is to get both sides to reach an agreement without needing to take the matter to a hearing (similar to a formal trial).

Unlike Social Security Disability Insurance (SSDI) cases, the party overseeing the process (the conciliator) does not have any stake in the outcome, since it is typically not the DIA that would be paying disability benefits.

Guidelines for conciliations are spelled out in M.G.L. Chapter 152 Section 10.

Conciliation for Modified/ Stopped Benefits

In most cases, a conciliation will arise from a denial for benefits. However, a conciliation may also be ordered if the workers’ compensation insurer files an action to stop or modify already-established benefits.

There are a variety of reasons an insurance company would want to stop paying benefits. One of the more common reasons is if the insurance company believes the worker is well enough to return to work, or has reached maximum medical improvement (MMI). Sometimes the insurance company will claim an injured worker is malingering, which is basically another way of saying the employee is exaggerating the extent of his or her injuries. Insurers have been known to go so far as to hire a private investigator to follow the claimant around to try to catch a video of them engaged in activities that show they are capable of working. In reality, cases of actual fraud are very rare. Another reason an insurer would try to modify or stop payments would be if the insurance company believes the injuries are pre-existing. Having an attorney to assist with your case will allow you to fight the insurance company’s argument and ensure you get the benefits you are owed.

An Advocate in the Conciliation Process

It is considered an informal proceeding, but the DIA strongly recommends that all parties hire an attorney to represent them during the process. The insurance company’s attorney will have extensive experience handling a conciliation and will understand the process well. Having your own workers’ compensation lawyer will ensure you are not taken advantage of.

The conciliation process is non-binding, meaning the conciliator does not have the power to issue a final order. However, it should be noted, that pursuant to M.G.L., c. 152, Section 10 of the Workers’ Compensation Act, the parties can agree to submit to binding arbitration if they wish to resolve their claim with an independent arbitrator.

One other thing to keep in mind is that in the conciliation process, like in any case submitted to a mediator, the conciliator cannot be called as a witness to testify in a subsequent hearing should the parties not reach an agreement. This is done so that the parties can talk freely about their concerns without fear that everything they say will be used against them later in court.

One of the reasons conciliation can be successful is that a good conciliator will likely have a great deal of experience working with these types of cases and generally has an idea as to what the administrative judge (AJ) may do if the case goes to trial. Many parties enter a conciliation with an unreasonable view of the case, and thus are not willing to accept an agreement or settlement. However, often times after a certified neutral party, such as the conciliator, tells you what he or she thinks the judge may do, the parties will move significantly closer to where they need to be to reach an agreement or settle.

You should know that your employer/ workers’ compensation insurer will have an attorney seated at the table, defending their best interests. For most insurer attorneys, workers’ compensation cases are the only kind of work they do. They are familiar with the law and know all the effective legal strategies they can use. You will need someone on your side who can match them.

Our workers’ compensation lawyers will ensure your rights are protected during this process, and we will fight for an outcome that is favorable to you.

Contact the Law Offices of Jeffrey S. Glassman today for a free and confidential consultation.

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