Workers' Comp: Resources for Injured Employees

On-the-job injuries in Massachusetts, whether due to co-worker negligence, an oversight by the employer, an outsider’s violence or even one’s own personal error, are compensable under Massachusetts General Laws Chapter 152.

At The Law Offices of Jeffrey S. Glassman, we recognize that almost all workers and workplaces in the Commonwealth are covered under these statutes in cases of occupational illness, injury or death per MGL ch.152 §25A.

We believe in the fundamentals of workers’ compensation as the “grand bargain” intended between employees and employers. That is: People injured at work are guaranteed access to reasonable medical care and money to live on, covered by the employer and their insurance companies. In turn, employers are protected from costly lawsuits stemming from workplace accidents.

However, problems arise when employers and their insurance companies don’t hold up their end of the bargain. They seek to deny these basic rights to injured workers and the grieving families of those killed. They will argue the injuries weren’t caused by a job-related condition or they will disagree as to the extent or seriousness of injuries asserted.

Lawyers who successfully fight back require extensive legal knowledge and planning, resources and time. This is where our team can help you. If you have suffered a work-related injury or illness that results in five full or partial calendar days of lost work time, you are entitled to benefits.

Although it is not required that workers hire an attorney in order to file for workers’ compensation benefits, it is strongly advised due to the complexity of workers’ compensation law. Our goal is always the protection of workers’ rights under the law. Employees who succeed in their workers’ compensation claim will have their attorney’s fees covered by the insurance company.

What Happens When I’m Injured at Work?

The Massachusetts Occupational Injuries and Illnesses Report indicates that within the Commonwealth private sector, there were 66,500 non-fatal work-related injuries and illnesses reported in 2013, along with 4,400 within the public sector.

Many of these workers are reeling in the aftermath of an incident, and ask question, “What Happens When I’m Injured at Work?

Our attorneys help to simplify what is often a confusing and frustrating process.

To start, there a few key things you need to do:

  • Report the injury immediately to your supervisor.
  • Request to see a doctor (or call 911 if it’s an emergency).
  • Request completion of a workers’ compensation claim form.

Seeking immediate medical treatment and reporting your injury to your employer right away will help strengthen your case. Many employers seek to deny or minimize workers’ compensation claims, so it’s important to have as much documentation early on to help solidify your assertions.

Reporting a Work Injury

The entire process of receiving workers’ compensation benefits begins with Reporting a Workplace Injury.

Unless and until you give notice of your injuries, your employer isn’t going to be under any obligation to provide you benefits. Many workers make the mistake of waiting to report an injury or illness until it becomes unbearable and they can’t work anymore. A delay in reporting can have serious complications not only to your case, but to your recovery.

Per MGL ch. 152 §6, an employer has seven calendar days – not including Sundays and legal holidays – from the time a worker gives notice of injury resulting in the inability to earn full wages for at least five days due to an occupational illness or injury to file notice with the state. This is done with a Form 101 – Employers First Report of Injury/Fatality, with the Department of Industrial Accidents.

It is the duty of the employer to report an alleged injury to the insurance company, regardless of whether he or she agrees with the employee’s claim. If an employer refuses to report the claim, workers should fill out this form themselves and send a copy to the insurer. If the employer won’t tell its worker the name of the insurance company, workers can contact the Department of Industrial Accidents or a work injury lawyer.

Job Classification – Employee or Independent Contractor

Under state law, workers who are independent contractors are not entitled to workers’ compensation benefits, while employees are entitled to receive them.

But determining Job Classification – Employee or Independent Contractor is a complex matter. There is no brightline rule. It involves careful analysis of aspects such as:

  • Worker’s duties
  • Level of control over which company had over worker’s daily activities
  • The way the worker was paid
  • Who provided the tools
  • Length of service time
  • Specialized skills involved
  • Other factors

Misclassification of workers is an ongoing problem. It not only deprives individuals of the benefits to which they are entitled, it harms taxpayers in terms of increased costs and lost revenue. It also creates an uneven playing field for those companies abiding the rules.

MGL ch. 149 §148B is known as the Independent Contractor/Misclassification Law and provides three elements that must exist for a worker to be classified as anything other than an employee. These are:

  • Freedom From Control
  • Service Outside the Usual Course of Employer’s Business
  • Independent Trade, Occupation, Profession or Business
Who Is Covered by Workers’ Compensation?

Determining Who is Covered by Workers Compensation in Massachusetts should be a fairly straightforward matter. After all, MGL ch. 152 §25A requires all employers with one or more employee(s) to provide workers’ compensation insurance to all employees. The insurance is supposed to pay for reasonable medical costs and a portion of lost wages.

There are a few limited exceptions. These are outlined in MGL 152 §1(4). They include:

  • LLCs, LLPs, Partners and Sole Proprietors
  • Corporate Officers
  • Independent Contractors
What if My Employer Lacks Workers’ Compensation Coverage?

Workers’ compensation coverage is required in Massachusetts by law.

When an Employer Lacks Workers’ Compensation Coverage in Massachusetts, injured workers have a few options.

First, there is a special trust fund that has been established to pay workers’ compensation benefits for workers who are injured on the job. People who are employees of uninsured companies and were injured on or after December 1985 can BOTH:

  • Collect from the special trust fund
  • Sue their employer in a civil negligence action

Note that the latter action can only be taken if the employer was somehow negligent in the causing the injury or illness. This is usually the case at least to some degree, but it’s important to consider this before deciding how to best move forward.

Work Injuries and Medical Treatment: Preferred Providers and Independent Medical Examinations

The physician you choose is important in this process. You will need a physician who understands what you do on-the-job. As a worker, you have the right to choose your own doctor to treat your health problems.

HOWEVER, if your employer has a “preferred provider” arrangement, he or she may require that you go to that individual for the first visit. This could be a designated company doctor or a certain clinic.

There is a difference though between Preferred Providers and Independent Medical Examinations.

While preferred providers are listed by the employer, independent medical exams are those requested through the insurance company to their own doctor for evaluation. You would not continue to receive treatment from this doctor – only an evaluation. It’s possible if your case isn’t complicated, you won’t be asked to undergo an independent medical exam.

What is Third-Party Lawsuit?

Workers who are hurt on-the-job in Massachusetts are, with limited exception, entitled to collect workers’ compensation benefits. If these benefits are available, exclusive remedy provisions of state workers’ compensation law prohibit workers from filing a civil action against their employer for negligence.

But employers often aren’t the only ones to blame. Sometimes, there is a third party that shares some of the fault for what happened.

These are known as Third-Party Lawsuits.

Some examples of third parties that may be taken to court to help compensate for your injuries:

  • Construction site owners
  • Other subcontractors
  • Manufacturers or distributors of defective products
  • At-fault drivers in work-related auto accidents

It’s important to consider this option, especially in cases where the injury was serious or a death was involved. Workers’ compensation often does not cover all losses a worker suffered as a result of an occupational accident or illness. Third-party lawsuits can help shore up your financial future and hold accountable others who were in the wrong.

What is the Difference Between Workers’ Compensation and Disability?

When someone is injured on the job and is unable to work for five days or more, there may be a few different ways to proceed with obtaining compensation.

The first is workers’ compensation insurance benefits, which are paid through a no-fault insurance policy held by the employer. But then there are also potentially disability benefits – either through your private insurer or through the state.

The Difference Between Workers’ Compensation and Disability is that while disability benefits are paid regardless of the cause of your injury – so long as you are deemed disabled – while workers’ compensation is solely for worker-related illness or injury. Short-term disability is usually paid for by the worker as part of their regular insurance policy, while Social Security Disability Insurance is a federal government program that one seeks separately.

There are different requirements and timelines for these benefits. In some cases, workers can receive both, but it’s important to have an attorney carefully review the policy because the workers’ compensation insurance carrier could be entitled to a set-off to ensure no excess benefits are paid out.

Do I Need an Attorney? / Choosing an Attorney

There is nothing in Massachusetts law that requires injured or ill workers to have a workers’ compensation lawyer.

However, the question “Do I Need an Attorney?” pops up in numerous state website inquiries. The answer, consistently, is: It is strongly advised.

For example, the Department of Industrial Accidents notes that workers’ compensation law is complex, and especially if your claim is disputed, it’s highly recommended that you seek legal counsel so you can ensure your rights are protected.

Workers’ Compensation Attorney Fees

Workers’ Compensation Attorney Fees are spelled out in MGL ch. 152 § 13A.

Attorneys who handle workers’ compensation cases generally work on a contingency-fee basis. What this means is attorneys aren’t paid until the case is resolved.

If a case is successful, attorneys are paid one of two ways: The insurance company is ordered to pay all attorney’s fees or the attorney receives a portion of the lump sum settlement, not to exceed 20 percent.

What are My Benefits?

The type and Amount of Workers’ Compensation Benefits you receive will depend on several factors, such as:

  • Type of injury
  • Extent of injury
  • Length of time off work
  • Earnings prior to injury

For example, if you qualify for temporary total incapacity benefits, you will receive 60 percent of your gross average weekly wage for up to 156 weeks. Meanwhile, if you are deemed to be partially incapacitated – that is, you can still work, but have lost part of your earning capacity due to work-related injury or illness – you are entitled up to 75 percent of what your weekly total temporary benefits would be for up to 260 weeks.

The minimum-maximum rates for coverage are updated every year in October. As of October 2015, the minimum weekly compensation rate was $243, while the maximum weekly compensation rate was $1,214.

Temporary vs. Permanent Disability

The determination of Temporary vs. Permanent Disability benefits is based on the length of your incapacity.

You may qualify for permanent and total disability benefits if you are totally and permanently unable to do any kind of work as a result of your occupational injury or illness. It is not necessary to exhaust your temporary benefits before you apply for permanent benefits.

Temporary total incapacity benefits are available if your injury or illness renders you unable to work for six days or more. This determination is made based on your age, training and experience.

Workers’ Compensation Dispute Process

The Workers’ Compensation Dispute Process is complex, which is why an attorney is usually needed to help injured workers and surviving family members navigate it.

It involves:

  • Conciliation. This is when, upon receipt of the employee’s claim or the insurer’s complaint for modification, discontinuance or recoupment of compensation, an informal meeting occurs with a conciliator from the Department of Industrial Accidents. An effort is made to reach a voluntary agreement. If one cannot be reached, the case will be referred for a conference.
  • Conference. An informal legal meeting before an administrative law judge in which claimant needs to show he or she was disabled, the injury/illness was work-related and any disputed medical bills were necessary for treatment. The judge issues a conference order, which can be appealed.
  • Hearing. A formal legal proceeding in which sworn testimony is taken, witnesses are called and a stenographer will record the proceedings. A judge will render a decision. Any appeals to this decision have to be received within 30 days.
  • Industrial Accidents Reviewing Board. A panel of six administrative law judges will review the decision for determination of whether reversal or remand is warranted.
  • Appeals. Any further appeals go before the Massachusetts Court of Appeals.
What Are Workers’ Compensation Death Benefits in Massachusetts?

Workers’ Compensation Death Benefits in Massachusetts are sometimes referred to as “Survivors’ and Dependents’ Benefits.”

In the event that a worker dies as a result of a workplace injury or illness, that worker’s spouse and/or children may be eligible to receive workers’ compensation benefits. In order for children to be eligible, they have to be under 18, be full-time students or be unable to work due to physical or mental disabilities.

Survivors’ benefits, which are two-thirds the decedent’s average weekly wages (up to the state maximum), last for as long as those individuals remain dependent and do not remarry.

Top Causes of Work Accidents

Although work accidents can happen in almost any workplace, there are some industries tend to see more illness than others.

The Massachusetts Department of Labor and Workforce Development reports there were nearly 71,000 non-fatal work-related injuries and illnesses reported in both the public and private sectors throughout the Commonwealth in 2013.

Of those, the incidence rate varied by industry type. Those with the highest rate of occupational injury and illness were:

  • Natural Resources and Mining – 5.2 per 100 full-time employees
  • Education and Health Services – 4.5 per 100 full-time employees
  • Construction – 4.4 per 100 full-time employees
  • State Government – 4.3 per 100 full-time employees
  • Leisure and Hospitality – 3.9 per 100 full-time employees
  • Trade, Transportation & Utilities – 3.4 per 100 full-time employees
  • Manufacturing – 2.6 per 100 full-time employees

In looking at the total numbers, Education & Health Services, Trade, Transportation & Utilities and Construction rounded out the top three in the Commonwealth.

The Top Causes of Work Accidents in Massachusetts are:

  • Overexertion
  • Falls on the same level
  • Struck by object or equipment
  • Falls to lower level
  • Roadway incidents
  • Slip or trip without fall
  • Caught in/ Compressed by object
  • Repetitive motions
  • Struck against object or equipment
Disease in the Workplace

The state labor department reports there were 3,100 cases of non-fatal occupational illnesses in 2013.

While most of these were classified as “other,” the types that were otherwise most commonly noted were:

  • Skin Disorders – 400
  • Respiratory Conditions – 300
  • Hearing Loss – 300

The Commonwealth’s incidence rate for occupational illness – 2.9 per 100 full-time workers – is statistically less than the national rate of 3.3 cases per 100 full-time workers.

Latent Diagnosis of Work Injury or Illness

Some workers in the course of their profession were exposed to hazardous materials, such as asbestos, silica, welding fumes, radiation, lead or dangerous chemicals or substances. The effects of that exposure are often not known until many years later.

A Latent Diagnosis of a Work Injury or Illness might include:

  • Lung cancer
  • Mesothelioma
  • Asbestosis
  • COPD

Workers’ compensation for these conditions may be available, in addition to certain product liability claims.

Statute of Limitations

For occupational injuries that occur on or after Jan. 1, 1986, there is a Statute of Limitations for filing workers’ compensation claims.

The time limit is four years from the date of injury, though this may be extended or “tolled” if there are special conditions, such as latent diagnosis of a work injury, usually due to toxic exposure of workplace materials.

Our experienced legal team can help you examine whether your claim falls within the applicable statutory time limits.

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

Call (617) 367-2900 – NO FEE UNLESS SUCCESSFUL

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