The scales of justice for Massachusetts’ workers might need some realigning.
The laws governing workers compensation haven’t changed much since a sweeping reform in 1991 that tipped those scales heavily in favor of the insurance industry and employers.
Among the many changes that occurred three decades ago – and haven’t changed since – are:
- Reduced weekly benefits from 66.7% of a worker’s average annual wage to 60%. That is effectively, a 10% drop in pay. If you were paid $1,000 a week, before 1991, you would get $667 a week when hurt. Now you get $600.
- Reduced the time you could collect total disability from five years to three years
- Reduced the time you could collect partial disability from 11.8 years to five years
- Eliminated scarring benefits, unless it’s on the hand, neck or face.
- Eliminated cost of living adjustments for people on partial disability.
- Allowed insurance companies to petition to terminate benefits once a person reached retirement age.
Alan Pierce has been representing injured workers in Massachusetts for over 40 years and knows there will be ups-and-downs in how laws are written, but wonders why there haven’t been many “ups” for workers since things were turned upside down 1991.
“They called that workers comp reform,” Pierce said. “Those of us who represent injured workers call it workers comp deform.”
Some of the legislation made sense. Employers were threatening to take their business to other states because premiums for workers comp were so high. Insurers already were leaving the state because, even with increased premiums, they struggled to make a profit.
“The legislature tried to balance the scales of justice and went too far the other way,” Pierce said. “Since then, claimants, lawyers, unions and others have tried to get back some of the benefits taken away, but we have been largely unsuccessful.”
Pierce said that over the last 30 years, the parties have largely adjusted to these changes and noted that insurance premiums have gone down almost every year since 1991. Profits for insurance companies are so attractive that insurers are entering, rather than leaving, the state.
“Crisis begets change … and there is no crisis now, like there was in ’91,” Pierce said. “When there is no crisis, there is no incentive for the legislature to do something. The insurance companies have come back to Massachusetts because it’s very profitable and employers are paying lower premiums but injured workers haven’t gotten back any of the benefits it took to achieve that.
“Let’s hope we don’t need a crisis to make that happen.”
How to File a Workers Compensation Claim in Massachusetts
The process for injured workers in Massachusetts filing a workers compensation claim begins with immediately notifying your supervisor, or at least a co-worker of the accident so there is a witness.
Seek medical treatment right away, but if there is time, use a smartphone to take pictures at the scene in case they are needed to settle future disputes.
After receiving treatment, check with your supervisor or your employer’s human resources department, to be sure a claim has been filed. If you are concerned that there is a delay, you may download Employee Claim Form 110 from the Massachusetts workers’ compensation website, and file a claim yourself with the Department of Industrial Accidents (DIA), which oversees workers’ comp in Massachusetts.
To file a claim, you will need a laundry list of paperwork that includes:
- The date for the injury
- If you missed more than five days of work, the date for the first day you missed and the fifth day you missed because of the injury
- The insurance carrier’s name
- What body parts were injured
- What benefits you are seeking
- Where you first went for treatment and the doctor currently treating you.
You should make copies of all the information and attached them to a claim form. Keep the copies handy for later stages in the process. If you fail to provide any of the necessary paperwork in filing your claim, the DIA can deny the claim right away.
Having that long list of specifics is the first of several reasons you should consider contacting an attorney, early in the process. Even the Department of Industrial Accidents recommends you hire a workers comp attorney to steer you through the process.
Deadlines for Filing a Workers Comp Claim in Massachusetts
Officially, the deadline in Massachusetts for an injured worker to report an injury is four years, but the reality is … the sooner the better!
So many things can happen in just one week – let alone four years! – that it’s just common sense to let you employer know the day an accident happens.
Other important deadlines to keep track of:
- Employer has 14 days to report the injury to the insurance carrier
- Either side has 14 days to appeal an administrative judge’s decision after a worker’s compensation conference.
- If either side dispute the judge’s decision at an evidentiary hearing, they have 30 days to appeal
- There are several other deadlines depending on the circumstances so you should always consult with an experienced workers’ compensation attorney.
Employers Responsibility in Massachusetts Workers Comp Claims
The employer’s first responsibility is to cooperate with the insurance company, meaning notify them of the accident and tell them if the employee has missed five days (not consecutive) of work because of the injury.
The employer also should be prepared to:
- File appropriate forms at the appropriate time
- Provide the insurance carrier with the worker’s average salary over a 52-week period
- Answer questions on whether the accident happened as claimed
- Describe the worker’s duties and responsibilities
- Provide light-duty work, if available
- Not retaliate against workers who file a claim
- Make reasonable accommodations for disabilities
Insurance Company’s Responsibility in Massachusetts Workers Comp Claims
There is a hard-and-fast rule on insurance companies: they have 14 days to tell injured workers whether they will pay the claim or deny it.
The insurance carrier must file a notice of payment with the injured worker and the DIA, if it agrees with the claim. They must file a notice of denial if they reject the claim.
If the claim is approved and an injured worker returns to work in less than five days, the insurance company is responsible only for medical treatment. If the worker misses more than five days because of the injury, the insurance carrier is responsible for medical treatment and lost wages.
If the claim is denied, the insurance carrier must provide a list of specific reasons for denying the claim and grounds they used for each of the reasons.
The insurers have an obligation to get the injured workers copies of their records.
What Happens If Your Claim Is Denied?
If insurance carrier denies or wants to modify claim benefits — or the injured worker disputes the carrier’s decision — they must file a form 110 – Employee Claim with the Department of Industrial Accidents to begin an appeals process.
The appeals process is a four-step action, during which either side can dispute the outcome and move on to the next stage, or, more likely, come to resolution.
The process begins with conciliation and includes a conference, a hearing and finally, a presentation to a review board.
Here is a look at what happens on each step of the way.
Step 1: Conciliation Meeting
Once a claim is filed, the DIA will schedule a conciliation meeting, typically within 3-4 weeks. Conciliation is a meeting between the injured worker, his/her attorney (if they have one), the insurance carrier representative and a conciliator from the DIA to discuss what benefits the worker is qualified to receive.
The worker should bring documentation of the accident as well as at least one of the following items to a conciliation:
- Medical reports
- Reports on how the accident happened
- Names of witnesses and their statements
- Unpaid medical bills
Sometimes, the carrier will ask for more time to investigate the accident and will be granted an extension of 3-4 weeks.
There could be more than one conciliation. Less than 50% of claims are resolved at the conciliation level. If the two sides can’t agree, the matter is administratively sent on for a conference before an administrative judge.
At this point in the process, even the government website strongly recommends that injured workers hire an attorney.
Step 2: Conference Proceeding
A conference proceeding is a more formal meeting where the injured worker, their attorney (if they have one), a lawyer from the insurance carrier and an administrative judge try to resolve disputed issues.
If the issues are resolved, the judge will issue a temporary order that says whether benefits must be paid and what modifications, if any, there are in benefits. If the insurance carrier denies the claim, the judge will address that, too.
If the claim is denied, the worker or his/her attorney can file an appeal within 14 days and the matter goes to the “hearing” level.
Step 3: Hearing
A hearing is a formal trial of the case where the rules of evidence apply and a court stenographer records the entire proceeding.
At the hearing level, witnesses will be called; depositions will be filed; and the judge can ask for both sides to submit new evidence and oral testimony.
The judge will then issue a decision, usually within 30-90 days, which can be appealed by either side and sent to a Review Board.
Step 4: Review Board
The Review Board is a panel of three judges who will review the transcripts from the hearing, receive briefs from the parties and may hold oral argument. The judges then decide whether to approve, modify or reverse the original decision.
If either side wishes to appeal again, the next stop is Massachusetts Court of Appeals. Most cases are resolved before reaching the Review Board level and very rarely do cases proceed to the Appeals Court or beyond, to the Supreme Judicial Court.
Eligibility for Workers Compensation in Massachusetts
Every employee in Massachusetts is eligible for workers compensation benefits. Employees are defined as “every person in the service of another under any contract of hire, express or implied, oral or written.”
That covers most people, but there are a few exceptions.
- Seamen engaged in interstate or foreign commerce
- Salesman for real estate or consumer goods who operate on a commission basis
- Taxi drivers
- Persons engaged in interstate/foreign commerce and are covered by federal law for compensation for death or injury
If you are a dependent of a worker killed on the job, you are eligible for death benefits from workers’ compensation.
Family members who work at the family business, must be covered by workers compensation, even if they are the only employees in the business.
Benefits: What Does Workers Comp Cover in Massachusetts?
Payment for medical treatment and compensation for lost wages are the major benefits for workers compensation in Massachusetts. Some claimants will qualify for vocational rehabilitation or an award for permanent functional impairment.
These benefits fall into several categories, depending on your injury and how that affected your ability to do a job.
The categories of benefits include:
- Temporary total incapacity
- Temporary Partial incapacity
- Permanent and total incapacity
- Permanent loss of function and disfigurement
- Survivors and dependency benefits in death cases.
- Burial expenses
Medical treatment is the most obvious benefit for a work-related injury. Your employer’s insurance carrier is responsible for any reasonable and necessary medical treatment you receive for accidents that occurred on the job.
Whether an injury occurred on the job can be a major area of dispute with workers’ comp claims. That is why it is so important to report your injury or illness as soon as you are aware of it and, if witnesses are present, ask them for statements that verify your claim.
You are entitled to payment for adequate and reasonable medical care. Prescription costs are covered as is mileage reimbursement to and from medical treatment.
Your first doctor or hospital visit in certain cases may be made to a healthcare provider approved by your employer. After the initial treatment, you have the right to choose your own provider. But you can only change a provider in a particular specialty once, after that you need the carrier’s permission.
Periodically, the insurance carrier has the right to send you to its own doctor for evaluation.
The insurance carrier often will give you a card that includes your claim number. You must present the card for payment each time you are treated or pick up a prescription.
The other major benefit is wage compensation, if you have missed more than five days of work because of the injury. It doesn’t have to be five consecutive days.
The wage compensation is 60% of your average weekly salary. The average weekly salary is calculated by adding the previous 52 weeks wages and dividing by 52, then multiplying that number by .60.
So, for example, if your average weekly wage was $1,000, you would receive $600 per week (1,000 multiplied by .60 = 600) while missing work to recover from the injury.
The wage compensation and amount of time you collect it, varies depending on the type of injury and the category involved. Here are some of the categories and compensation due.
Temporary Total Incapacity
If you miss six or more calendar days of work, you qualify for temporary total incapacity. The days do not have to be consecutive. You will receive 60% of your average weekly wage.
So, for example, if your average weekly salary was $1,000, you would receive $600 a week in compensation.
Compensation begins on the sixth day of missed work. You will not be compensated for the first five days, unless you miss more than 21 days of work.
There is a ceiling to these benefits, meaning you can only receive these benefits for up to 156 weeks (three years).
If you lose part of your earning capacity because of injury or illness, you qualify for these benefits. This includes having to change to a lower-paying job or work fewer hours because of the injury.
The amount is 60% of the difference between the pre injury wage and the post injury earnings or earning capacity
So, using the example above where your average weekly salary was $1,000, and after the injury you can only earn $300, you will receive 60% of the $700 difference, or $420 per week.
You can receive this benefit for up to 260 weeks (five years), however the total time you can collect a combination of total and partial disability cannot exceed seven years.
Permanent and Total Incapacity
If your injury or illness prevents you from doing any kind of work, you may qualify for permanent and total incapacity.
You will receive two-thirds (66.7%) of your average weekly wages, based on the 52 weeks before your injury. The maximum weekly benefit currently is $1,431, but you may be entitled to cost of living adjustments.
You will receive the benefits as long as you are disabled.
Permanent Loss of Function and Disfigurement
If your injury or illness causes a permanent los of specific functions, scarring or disfigurement, you qualify for this benefit.
You receive a one-time payment for scarring or disfigurement, based on the severity and location of the disfigurement or functions lost.
Benefits for Survivors and Dependents
Spouses and children of a worker who dies in a job-related accident qualify for benefits.
Spouses receive two-thirds (66.7%) of the deceased workers average weekly wage not to exceed the state maximum of $1,431. Spouses also receive cost of living adjustments. The benefits continue unless the surviving spouse remarries or after 250 weeks is deemed fully self supporting without the compensation payment.
If the spouse remarries, he/she will receive $60 a week for each eligible child.
The insurer is responsible for up to 8 times the state average wage ($1,431) towards burial expenses for a deceased worker.
What Is the Massachusetts Department of Industrial Accidents (DIA)
The Department of Industrial Accidents (DIA) is essentially the court system for workers’ compensation cases in Massachusetts.
The DIA schedules the meetings and court dates involved in disputed cases between injured workers and the carriers that insure employers throughout the state. The DIA helps all sides involved from injured workers, to employers, to attorneys and insurance carriers.
The DIA is responsible for seeing that every employer in the state has workers’ compensation insurance and is charged with resolving disputes over whether benefits are due to injured worker or should be stopped.
The DIA has a very informative website that answers questions and offers help to all parties involved in workers’ compensation in Massachusetts.
- N.A. (ND) Department of Industrial Accidents. Retrieved from https://www.mass.gov/orgs/department-of-industrial-accidents
- N.A. (2021, May 29) File a workers’ compensation claim. Retrieved from https://www.mass.gov/how-to/file-a-workers-compensation-claim
- N.A. (ND) Workers’ Compensation for Injured Workers. Retrieved from https://www.mass.gov/workers-compensation-for-injured-workers