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:
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
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
Injured workers in Massachusetts who are eligible for Massachusetts’ workers’ compensation benefits may be required by the insurance company and/or their employer to submit to an examination by a registered physician. This requirement is pursuant to Massachusetts General Laws, Chapter 152, Section 45. The workers’ compensation insurer and/or the employer must pay for this examination. This examination is typically scheduled by a workers’ compensation insurer at either the outset of the claim (just after the injury has occurred) or at a point in time where the insurer wants to either terminate or reduce weekly disability payments to the injured worker. Many questions and issues typically arise for an injured worker when they receive a notice of an IME examination from the workers’ compensation insurer or their employer. Here are some important things to know about the IME exam: Continue reading
On May 7, 2012 Sylbert Stewart fell from the edge of a dipping tank into a pool of chemicals, while cleaning the top of ventilation ducts in the course of his employment at the Belmont metal finishing factory where he has been employed for fourteen years. The Occupational Safety and Health Administration (OSHA) cited his employer for three separate violations in connection with the incident. Mr. Stewart sustained second and third degree burns from his thighs to his feet, and doctors removed skin from his back, chest, and arms for skin grafts to wrap around his legs.
Mr. Stewart received temporary total disability benefits through the Massachusetts workers’ compensation system, which pays 60 percent of his wage loss, and the full cost of medical treatment. However, he did not receive compensation for the scarring on his legs, which covers 38 percent of his total body surface. Currently, in order to be compensated for permanent scarring under the Massachusetts Workers Compensation Act a worker’s blemish has to be on the face, neck, or hands. Thus, if workers are disfigured on their arms, legs, or torsos they do not receive compensation. The disfigurement portion of the Act is obviously pro employer and insurer, which simply fails to take into account the burden it places on the daily life of an employee, like Sylbert Stewart. Continue reading
The injured employee in the case of James McDonald v. Brand Energy Services, Inc. was a union laborer who had worked and been injured at work several times dating back to 1991. In fact, the employee had injured his back four separate times prior to this particular work injury. With each of the four prior work-related back injuries, the employee received lump sum settlements. His last injury in which he received a lump sum settlement came in the year 2001. Approximately three years after his last work related injury he returned to work against the advice of several doctors in 2004. While employed he did not complete heavy-duty tasks but he did cope with daily pain by taking pain medication while completing lighter assignments. Continue reading
Beginning April 1, 2015 Massachusetts will extend employment protections to domestic workers. The Domestic Workers Bill of Rights will create new legal obligations for individuals or families who employ domestic workers including nannies, housekeepers, caregivers, and other domestic workers. The new law will create a number of new rights that will improve conditions for domestic workers such as a statutory right to privacy and how a live-in domestic worker may be terminated. Also, the Domestic Workers Bill of Rights definitively clarified that some existing state laws do extend to domestic workers. Included among existing Massachusetts laws that will extend to domestic workers are Massachusetts’ workers compensation benefits. Continue reading