Fiorentini
Law Office of
166 Kenoza Avenue
Route 110
800-834-6964 or 978 374-0596
jimfior02@aol.com
If You’re
Injured on the Job—More Advanced Information on Worker's Compensation
Note: If you are new to the worker's compensation system, you may want to read our first article, "A Primer on Worker's Compensation in Massachusetts"
If a Third Party Caused the Injury
If the employee was injured because of someone else’s negligence, then the employee also has the right to bring what is known as a third party lawsuit. For example, sometimes the employee on the job is hurt because of the negligence of some other subcontractor, or because of a defectively designed product. Under those circumstances the employee can collect worker’s compensation and bring a third party lawsuit against the negligent party. For Example, the injured worker may be able to bring a third party lawsuit against the manufacturer of the defective product, or against the general contractor.
As you would expect, however, there are strict rules against double recovery.
The worker’s compensation carrier has a lien against the proceeds of any third
party lawsuit and is entitled to reimbursement, as is the employer himself if
the employer paid out benefits to the injured worker. For an
excellent article on this, geared to
If You are Totally and Permanently
Disabled
For injuries that clear up fairly quickly, in a year or two, the worker’s compensation works fairly well.
But for long term permanent injuries, the system all too often fails injured workers. (Most of the "reforms" you’ve read about in the past few years have lowered premiums at the expense of the most injured workers.)
If you are totally and permanently disabled, then there are two options open to you.
The first is to collect Social Security
disability. Social security disability is available to workers at any age who
are "permanently and totally disabled." Totally disabled means unable
to do any work which exists in the national economy, and permanently means a
disability likely to last a year or more.
You can apply for social security disability
at any local social security office. Our experience in over twenty five years
of handling these cases is that injured workers are often denied the first time
around, but can win the cases on appeal.
The second option for an injured worker is to
apply for worker’s compensation benefits for permanent and total disability. In
theory the standard is the same "permanently and totally disabled"
but in practice, permanent and totally worker’s compensation benefits are much
harder to obtain then social society disability benefits.
If you are permanently and partially
disabled
Sometimes a worker is permanently and
partially disabled. For example, many of our workers are construction workers.
A back injury, or a heart attack at work can render the injured worker unable
to return to construction work, but able to do light duty work, albeit at a
much lower rate of pay.
The injured worker is eligible to collect
partial disability for up to 5 years, but after that there is no further
compensation. The injured worker is not eligible for social security or
permanent and total worker’s compensation benefits, since he or she is not
totally disabled, only partially.
New Hampshire allows some limited
compensation for this, in what is called a permanency award. To obtain a
permanency award, the injured worker must submit a doctor’s report that they
have lost a percentage use of some body part—an arm, leg etc. Our office can
assist you in applying for that award.
Massachusetts has no permanency award and no
compensation for permanent partial disability—a flaw in our system that should
be fixed. The closet thing Massachusetts has is what are known as "section
36 " benefits for scarring and loss of function.
The Tough Cases—Heart Attacks on the
Job
In most cases it is obvious whether or not the employee is hurt on the job—the injured employee fell at work or hurt his back while lifting.
But some cases are not so obvious. The most common workers compensation claims these days are employees who allege that they carpal tunnel or overuse syndrome was caused by their employment, or that their heart attack was caused by lifting at work.
Suppose for example a worker is handling heavy lifting at work, feels some chest pain and is rushed to the hospital where he is later is diagnosed as having a myocardial infarction—a classic heart attack. Most of the time a skillful worker’s compensation lawyer will be able to obtain worker’s compensation for that employee, since the standard is that work must be a substantial contributing factor in his heart attack, but need to be the most substantial factor, and need not be the only factor. Cases where chest pain is experienced at home are more difficult cases, and depend upon the history given by the patient.
The key for the injured worker is not to give up even in the face of an adverse opinion from the treating physician. Our office has encountered countless cases where the treating doctor was unaware of the legal standard for causation, mistakenly thinking that employment must be the only causes of the most substantial cause of the heart attack, and refusing to write a report to help the injured worker. In those cases it is critical for the injured worker to consult with a physician who understands the legal standard. For an interesting case where the patient had underlying cardiac artery disease and was award worker’s compensation see http://www.chicagolegalnet.com/WC-Heart-Attack.htm.