The simple answer to this question is yes, but only in very limited circumstances. One cannot generally sue their employer for injuries that happen at work. There are, however, some exceptions where an injured worker may “sue” to be compensated for a workplace injury. Massachusetts’ workers’ compensation laws provide that if one is injured at work, then the injured person’s “exclusive remedy’ against their employer is compensation through the workers’ compensation system. The Massachusetts workers’ compensation system, much like those workers’ compensation systems in other states, provides only limited compensation for work injuries. In stark contrast, civil lawsuits for injuries allow an injured person to pursue compensation for 100% of past and future wage loss, 100% of cost of medical expenses (subject to the insurer’s lien), and pain and suffering. Many times, an injured worker is surprised to hear that they are limited to workers’ compensation benefits as a result of their work injury. Because the settlement value of civil lawsuit generally far exceeds the settlement value of a workers’ compensation claim, it is always necessary to investigate a work injury to determine whether a civil lawsuit may also be pursued. A few situations where an injured worker may be able to pursue additional compensation through a civil lawsuit include:
In this Massachusetts’ workers’ compensation claim, an injured union sheet metal worker represented by Carney Law Firm was awarded Section 34A permanent and total disability benefits. The injured worker, represented by Attorney Brendan G. Carney, initially injured his left knee at work in 1980. He had left knee surgery and returned to work shortly thereafter. Then in 1998, while working on a pitched roof, the worker felt a sharp pain in his left knee. He underwent arthroscopic surgery, and returned to work once again after a few months of disability as he recovered from this second left knee surgery. He continued to work as a sheet metal roofer, and then in 2008 his left knee pain returned. He worked through pain, aided by injections, for four more years when his doctor told him he needed a total knee replacement. Because by this point he had worked enough years to qualify for a retirement pension through his union, he retired from work because of his left knee condition. Although his left knee symptoms were clearly all related to his history of work injuries, the worker was not aware that he was entitled to workers’ compensation benefits. He consulted with another attorney who was not sure whether there was a viable workers’ compensation claim. That prior attorney contacted our firm for guidance. After a thorough investigation of the injured workers’ medical and employment history, Carney Law Firm agreed to pursue the case. A claim for Section 34 temporary total disability benefits and payment for medical treatment, and then later a claim for Section 34A permanent and total disability benefits were then pursued by our firm. Continue reading
Often times, injured workers who are receiving Massachusetts workers’ compensation benefits are mailed a form titled “Form 105 – Agreement to Extend the 180 Day Payment Without Prejudice Period.” Workers’ compensation insurers may send this form to an injured worker who has not yet retained an attorney in hopes of getting an injured worker who has not yet hired a lawyer to sign the form without fully understanding the ramifications of doing so. It is usually sent to the injured worker during the 3rd to 5th month of disability following a work injury.
Signing the Agreement to Extend 180 Day Payment Without Prejudice Period form sent to you by the workers’ compensation insurer can have an extremely negative impact on your claim. Insurance companies will send you this form under the guise that they are doing you a favor and agreeing to pay you for another 180 days, however by signing this form you are giving up legal rights and you may expose yourself to allowing the insurer to legally terminate benefits and put you in the position where you could go many months with no benefits while you fight the insurance company in court. In order to fully understand why singing this form can have negative consequences for an injured worker, it would be helpful to explain exactly what the 180 Day Payment Without Prejudice Period is. Continue reading
Unfortunately for injured workers in Massachusetts, the short answer to this question is “yes”. Although Massachusetts General Laws Chapter 152, Section 75B(2) provides a legal remedy to injured workers who are fired in retaliation for filing a workers’ compensation claim, the law does not provide any protection for injured workers’ to protect their ongoing health insurance paid for by their employer. The exception to this is that most union member’s are subject to collective bargaining agreement provisions (negotiated by their respective labor unions) that provide ongoing health insurance coverage for injured workers for a certain period of time during a period of disability from work. However, most non-union employees have no protection at all. Although the general answer to the question posed by this blog is “Yes”, there are some federal laws that may protect an injured workers’ ongoing entitlement to health insurance coverage. Continue reading
Often times the first thought that employees have after suffering an on the job injury is whether their injury will cause them to be looked upon negatively by their employer. It is common knowledge that an injury that requires medical treatment and lost time from work will cost the employer money, both by way of lost productivity and increased workers’ compensation premiums. When an employee is injured on the job and requires more than six calendar days of disability from work, or requires medical treatment, shall be entitled to workers’ compensation benefits that compensate the injured worker for the lost time and medical treatment. These benefits are typically paid for by the employer’s workers’ compensation insurer, but may be paid directly by the employer themselves if they qualify for “self- insured” status. Once an employer’s workers’ compensation insurer has paid benefits to a Massachusetts’ injured worker, that insurer will then subject the employer to an insurance premium adjustment based on cost incurred by the insurance company. This adjustment typically passes some or all of the cost of the injured workers’ compensation claim from the insurance company back down to the employer. Because workplace injuries can cause an employer to incur a substantial cost, often times injured workers may be reluctant to report injuries or seek medical treatment out of fear that they may alienate their employer or be terminated. Continue reading
A problem that is becoming more common for injured workers in Massachusetts is finding a competent doctor who will accept worker’s compensation insurance and the medical reimbursement rates that Massachusetts’ workers’ compensation insurers are obligated to pay. To better understand why not all doctors are willing to accept patients who have been injured on the job, one must have a grasp of how health insurance plans are written, the amount of money a workers’ compensation insurer is obligated to pay a doctor, and why it is not always in the best financial interest of a doctor to accept workers’ compensation insurance.
First, all health insurance policies have an exclusion for work-related injuries. That means that if you are injured during the course of your employment, your health insurance policy will not pay for any medical treatment that is determined to be made necessary by your work injury. The only exception to this rule is a situation where you are injured at work and your employer’s workers’ compensation insurer has denied payment for your medical treatment. The workers’ compensation insurer’s denial will then trigger your health insurer’s obligation to pay for the medical treatment so long as it is determined to be treatment that is reasonable and necessary. In this situation, your health insurer will likely then file a lien on your workers’ compensation claim if you decide to retain an attorney and file a claim at the Department of Industrial Accidents seeking to compel the workers’ compensation insurer to pay for your medical treatment. All medical treatment made necessary by a work related injury should be billed to your employer’s workers’ compensation insurer. Continue reading
Workers’ Compensation insurers must follow certain procedures in order to lawfully terminate or reduce Massachusetts workers’ compensation benefits. The procedure for modification or termination varies greatly depending on how long the insurance company has been paying benefits.
THE FIRST 180 DAYS AFTER YOUR DISABILITY BEGINS
If the insurer has began to make payment of weekly benefits to you timely, namely within 14 days of notice, the insurer is allowed to stop payments to the employee without obtaining approval of the Department of Industrial Accidents (“DIA”) or the consent of the employee. However the insurer is required to give the employee seven(7) day written notice of their intent to stop benefits. The insurer’s written notice of termination must state their reasons and advise the employee of his or her rights to file a claim for further benefits. If you return to work at the same rate of pay you were earning prior to your injury, the insurer may terminate benefits effective the last day you were disabled prior to your return to work. If your own treating doctor clears you to return to your previous job, the insurer may terminate benefits regardless of whether or not your prior job remains available to you.
All Massachusetts weekly workers’ compensation benefits are based off of the average weekly wage of the injured worker.
How Is Average Weekly Wage Figured?
The calculation of average weekly wage is always based upon the employee’s gross earnings. If the employee has worked a full year prior to the injury, one averages the full 52 weeks prior to the injury. These gross earnings include such things as bonuses, vacation time, overtime, and commissions. The value of fringe benefits, such as health insurance, are not added in to the earnings. Total earnings in the 52 week period are divided by 52 to get the average weekly wage. If an employee has worked less than 52 weeks, the number of weeks actually worked will be divided into the gross earnings. For workers who have worked only a very few weeks, the calculations for average wage may be based upon a fellow employee who had worked for the same employer doing the same work for a longer period of time. A list of the maximum weekly compensation rates over the past ten (10) years is found below.
|Injury On or After||Maximum Weekly Benefit|
What If I Work More Than One Job?
In cases where an employee has more than one job, his wages from both jobs can be included in the computation for workers’ compensation if both jobs are jobs covered by the Massachusetts Workers’ Compensation system. This essentially means that both jobs must be ones that are for legitimate employers who are deducting taxes from the employee’s wages and reporting income to the government, and have a policy providing workers’ compensation coverage. This situation is called concurrent employment and can substantially increase weekly benefits to the injured employee.
Section 34/Temporary Total Disability Benefits
In Massachusetts, workers are entitled to weekly temporary total disability benefits if they are unable to perform any job. It should be noted that inability to do one’s former job is not necessarily enough. Continue reading
There are many factors that determine the Lump Sum settlement value of a Massachusetts’ workers’ compensation claim. Some Massachusetts’ workers compensation claims may have no settlement value at all, while some may have a settlement value of several hundred thousand dollars (or more). While it is important to stress that each individual workers’ compensation claim must be evaluated individually, there are some important factors that determine if a claim has settlement value, and if so, the amount of that settlement value.
Each state administers its own individual system of workers’ compensation benefits. In Massachusetts, the workers’ compensation system is known as what is commonly referred to as a “wage loss” system. That is, if a work related injury or medical condition causes a period of disability from work that also causes wage loss, then the injured worker is entitled to weekly wage loss benefits. It should be noted that not all work related injuries (even if the injury prevents the injured worker from returning to the previous occupation that they were performing while they were injured) cause a wage loss. For example, a forty five year old employee with a master’s degree in computer science is laid off from his job as a computer software programmer where he was paid $78,000.00 per year, or $1,500.00 per week. In order to pay his bills while he looks for another job in the computer software field, he takes a job in the construction industry as a laborer. While working as a laborer, he strains his back. Although the injury isn’t serious enough to cause him to need back surgery, the injured worker is permanently disabled from working as a laborer where he was earning $1,000.00 per week. His treating doctor is of the opinion that he can return to work at a sedentary or light duty job. Because he is capable of earning more money as a computer software programmer, an occupation he is trained for, physically able to do, and pays him more money than the laborer job, he has no wage loss and would not be entitled to any weekly workers compensation after the point in time where his doctor cleared him to return to light duty work. Continue reading
On March 24, 2016, Alan Schwarz of the New York Times wrote a revealing article outlining the actions the NFL took to manipulate the opinions of neurologists they retained to study the effect of concussions and the health risks related thereto. The article also suggests that the NFL has relied upon lobbyists and lawyers also retained by the Tobacco industry, who used them to deny health risks associated with smoking cigarettes. Schwarz’s article has revealed information not previously made public, including the fact that the NFL omitted at least 100 reported concussions (many suffered by star players such as Steve Young and Troy Aikman). At least one doctor retained by the NFL to study the effects of concussions on the brain admitted that if the data supplied to him was incomplete then his opinions would not be valid. Continue reading