Fiorentini Law Office
Over A Quarter Century of Tough, Aggressive Representation
of Injured Victims
1-800-834-6964 978-374-0596;
Email: jimfior02@aol.com
If You Are Injured on the Job-- A Primer on Worker's Compensation in Massachusetts
Since the turn of the 20th century, every State in the country has passed laws providing for worker's compensation for injured workers. This system, which you know as "worker’s compensation" replaced the former system of allowing injured workers to sue their employees, and requiring the worker to prove negligence before he or she could collect compensation.
In a worker’s compensation system, the injured worker need only show that his or her injury "arises out of and in the course of" his or her employment. No lawsuit is permitted against the employer. Recovery is supposed to be automatic, with no need for lawyers, court intervention, or long delays. Here’s an outline of how the system works in Massachusetts and New Hampshire, the two States where the Fiorentini Law Office has handled worker’s compensation cases for over a quarter of a century.
When you are entitled to benefits-- an oversimplified summary
If you are unable to work because of a work
related injury, you are probably entitled to worker’s compensation for the time
unable to work and actually not working. In
Worker’s Compensation pays your medical bills that are related to the injury
for the rest of your life. While you are out of work, for a limited period,
worker’s compensation pays you total compensation, which equals 60%
of your average weekly wage. If you are
partially disabled, you may be entitled to partial compensation. If you are totally and permanently
disabled, you may be able to collect worker's compensation for the rest of your
work life. This is called "total and permanent disability."
Generally, you cannot sue your employer or a fellow employee for an injury that took place on the job. You can collect only the benefits allowed by the worker’s compensation law. You cannot collect for pain and suffering against the employer. However, if a third party caused your injury, you may be able to collect worker's compensation and simultaneously bring a third party lawsuit. A common example of this is the construction worker who is hurt on the job working for a sub-contractor. He or can collect worker's compensation against the subcontractor, and then bring what is called a "third party lawsuit" against the general contractor. For more information on third party lawsuits, see our newsletter on advanced worker's topics on our website (www.fiorentinilaw.com) in Workers_Compesnsation__Advanced_topics.html
Outline of the Procedure
First, the injured employee notifies his employer that he believes his
injury 
was work related.
The employer is required to notify immediately their worker’s compensation
insurance carrier, which in
If the insurance company decides that the worker was indeed hurt on the job—as happens in roughly 95% of the claims, then after the worker is out a minimum of 5 days, the worker begins to receive a worker’s compensation check equal to 60% of his or her former weekly pay up to a maximum of about $750 per week. There are strict time limits on how long he or she can collect worker’s compensation—3 years for temporary total disability (wth exceptions) and 5 years for partial disability.
If the insurance company denies the claim, the injured worker has the right
to file a claim with the State agency, which regulates worker’s compensation in
their state—in
If you are hurt in
If you get hurt on the job, make certain the case is reported immediately to your employer, in writing. Make certain you get adequate and prompt medical attention. Keep copies of all documents and make certain that your company is well aware of your injury. If you are unable to work, make certain that you have a note from your doctor, that you keep a copy of it, and that you report this immediately to your company. Do not take vacation time. Do not just call in sick and not tell someone about the injury. Always get the name of the person you spoke with. If you need to see a doctor, make certain you see one. You are not required to treat at the doctor selected by your company.
If you find that you are hurt and your company will not pay you Worker’s
Compensation, then you can bring a claim. Claims in
Massachusetts Worker’s Compensation cases are handled in three stages:
Conciliation Stage
The conciliation stage takes approximately 30 - 45 days from the date when the claim is first filed. This stage is the point where claims without adequate medical documentation are dismissed. However, since there is no judge at this stage no one has the power to either put you on or take you off compensation.
Conference Stage
If the claim does not settle at the conciliation stage, the next step is "dispute resolution". The first step of dispute resolution is called a conference. At the conference, a judge will look over your medical reports and records and make a decision as to whether or not to place you on workers compensation. The lawyer does the entire presentation at the conference stage. The client does not give any testimony. The judge is given up to date reports from the client’s doctor.
At the end of the conference, the judge will issue a written decision, which usually comes down within 3-4 days. The judge has the power to place a claimant on compensation, reduce benefits, or terminate benefits. The losing party will invariably appeal the Conference decision. If appealed, there is a $550.00 filing fee. While the case is pending on appeal, the Department of Industrial Accidents appoints an "impartial physician" to conduct an "impartial medical examination."
Impartial Medical Examinations-- After the Conference
In between the conference and the hearing, an impartial doctor selected by the Department of Industrial Accidents examines the claimant. (This is not the same as the so-called "IME", where the insurance company examines the claimant.) The impartial doctor issues a report. That report usually decides the case, since it is given what is known as "prima facie" evidence at the hearing.
Hearing Stage
The next stage after the conference is a "hearing". At the hearing, all parties testify. At the hearing, the judge decides if there will be any further medical evidence admitted beyond the report of the impartial doctor. Note that unless the judge allows it, the only medical evidence that is admissible is the report of the impartial doctor.
If you have been hurt on the job and would like a free evaluation of your claim, feel free to give us a call or send us and email click here.
Last Best Offers
It is in your interest to submit a reasonable "last best offer" every time we go before the Industrial Board. The Judge (or conciliator) will chose between our last best offer and the last best offer of the Insurance Company. The offer should be reasonable in order to have some chance that the judge will chose our offer over the insurance companies.
Lump Sum Settlements
Your employer must approve all lump sum agreements in writing. There are very few exceptions to this rule. This means that if, for any reason, your employer does not want to approve a settlement, there will simply be no settlement.
Lump sum settlements must also receive the approval of the Department of Vocational Rehabilitation at the Industrial Accident Board.
When Your Benefits Can Be Stopped
If you go back to work full time making the same rate of pay then your benefits stop.
Normally, the insurance company can only stop your benefits if they get permission from a judge at the Department of Industrial Accidents (Mass) or Department of Labor (NH).
However, under certain circumstances, can stop your weekly benefits, without permission from a judge. The insurance company can stop your weekly payments without a hearing. Some of the grounds are failure to attend an impartial medical examination, failure to attend an examination that the insurance company asks you to attend, going back to work, and failure to respond to a request that you furnish earnings’ reports to the insurance company. If a doctor states that you are able to go back to work with restrictions, and your company makes a written job offer that meets those restrictions, you may lose your benefits without a hearing if you do not try to go back to work. If you have your own Doctor telling you that you can do light duty work, and your company makes an offer of light duty work, you should generally make the effort to go back to work.
You have a 28-day grace period to see if you can do the work, and you are automatically back on worker’s compensation if you find that you cannot do the job. For this 28 day grace period to apply you must notify the compensation carrier in writing both when you return to work and, if you can not do the job, within 21 days of when you leave work again.
Fraud Provisions
The law has strict provisions against fraud. The term fraud is very broadly construed. If you are working, you must report all earnings to the worker’s compensation carrier on a form approved by the Department of Industrial Accidents. If you have other accidents or injuries, you are required to notify the worker’s compensation carrier. If a doctor writes a report stating you are able to work we may have to send that report to the insurance carrier, even though that would hurt your case.
Job Applications
The law prohibits lying on a job application about prior injuries. If you fail to disclose a prior injury on a job application new section 27A of the worker’s compensation act may bar you from collecting worker’s compensation for similar injuries from the new employer.
Dr. Shopping
The law has strict provisions regulating the number of times that you can switch treating doctors. You can switch doctors only once within specialties. Any switches other than those require the approval of your worker’s compensation carrier or the Department of Industrial Accidents.
BENEFITS
For persons injured after
Workers totally disabled will now be able to collect for a maximum of 3 years unless they can prove they are totally and permanently disabled. While workers partially disabled will be able to collect for a maximum of 5 years (with some exceptions).
Scarring
Injured workers will be paid for scarring only if the scars are on your face, neck or hands.
If you have any questions or if we can assist on your claim, feel free to contact us. Click here
Worker’s Compensation Isn’t All We Do
We are a full service law firm. Some of the other services that we provide are as follows:
Bankruptcy
A chapter 7 or chapter 13 bankruptcy can (possibly) save your home from foreclosure and allow you to keep the home and most other assets. To see our special bankruptcy page, click here.
Wills and Trusts
In addition to transferring assets upon your death, a will can allow you to name a guardian for your minor children.
Our Staff
James J. Fiorentini, Esquire
Practicing attorney for 28 years. Licensed in
William F. Smith, honors graduate
To learn more about our staff click here
More information on Workers Compensation:
To log onto the Department of Industrial Accident Home page, click here
To read the Worker's compensation law, MGL c. 152, click here
To read the decisions of the Reviewing Board of the Department of Industrial Accidents, click here
To long onto the New Hampshire Department of Labor Worker's Compensation Division web site, click here
To read the Worker's Compensation law
in
For a list of worker's compensation agencies in all 50 States, click here
For a good national resource of worker's compensation laws and sources, geared to labor activists, check out http://www.workerscompensationinsurance.com/.
For a good introduction to OSHA and how to file a complaint about an unsafe work place, including forms and an introduction to Whistleblower statutes, check out http://www.osha.gov/as/opa/worker/index.html.
For and excellent summary of Federal worker's compensation cases and a good source of materials on that. Check out http://www.law.cornell.edu/topics/workers_compensation.html
To return to our home page, click here