It is imperative to know your rights and know the process to protect yourself if you are involved in a work related injury. The Attorneys at Ford, Quinn & Desmarais want you to know that we are here to help the working citizens protect themselves against the complicated worker compensation process.
What you should know:
If your work-related injury or illness results in lost work time of five full or partial calendar days or more, your employer must file a form known as – Employer’s First Report of Injury or Fatality with the DIA and their workers’ compensation insurance company within seven calendar days (not including Sundays and legal holidays) from the fifth full or partial calendar day you have been disabled because of the injury or illness.
The insurance company has 14 calendar days from when they receive this form from your employer to investigate the claim and make a decision as to whether to pay the claim or not.
Workers Compensation cover’s lost wages, medical bills, loss of function, scarring, disfigurement, Survivors’ and Dependents’ Benefits and Burial Expenses. It does not, however, cover pain and suffering.
There following are the different types of lost wage benefits:
Temporary Total Incapacity Benefits:
Your benefits will be 60% of your gross average weekly wage. To determine your benefits, take your actual gross earnings, including overtime, bonuses, etc., and divide this number by the number of weeks you worked at your job in order to compute your average weekly wage. Multiply that by 60% (.60) to come up with your approximate weekly compensation. The maximum that you can receive is the State’s Average Weekly Wage (SAWW) at the time of your injury. The SAWW is set annually by the Massachusetts Division of Unemployment. You can receive these benefits for up to 156 weeks. Compensation begins on the sixth day of incapacity; you will not be compensated for the first five days of incapacity unless you are disabled for 21 calendar days or more. Again, these days do not have to be consecutive.
Partial Incapacity Benefits:
The maximum compensation under this section of the law is limited to 75% (.75) of what your weekly total temporary benefits would be.
Permanent and Total Incapacity Benefits:
You will get two-thirds of your average weekly wage (or a minimum of 20% of the SAWW) based on the 52 weeks prior to your injury, up to a maximum of the SAWW. You are also entitled to annual Cost-Of-Living Adjustments (COLA). You can receive benefits for as long as you are disabled.
If the insurer denies your claim, stops paying for your benefits when you have a disability note relating your current disability and/or treatment to the work related injury a Form 110, known as The Employee’s Claim Form, should be filed with the Department of Industrial Accidents. Once a Form 110 is filed there is a process the case must go through before a Judge makes a final decision. The steps are:
A Conciliation is an informal meeting between you, your attorney, the insurer, and a conciliator from the DIA. At the Conciliation we will attempt to reach a voluntary agreement between you and the insurer. If a voluntary agreement cannot be reached, the status of your claim would remain the same as before.
The Conference is an informal proceeding before an Administrative Judge. The judge learns about the case from presentations by both parties and the submission of documents, such as medical reports, wage statements and affidavits from witnesses. Witnesses are not called. At the Conference you would need to show: (A) the injured worker was disabled; (B) the injury or illness was work related; and (C) that any disputed medical bills were for necessary treatment. After the Conference the judge issues an order, either telling the insurer to pay benefits, ruling that they are not required to pay benefits or that benefits currently being paid may be stopped.
The Conference Order can be appealed by either party on an Appeal of a Conference Proceeding – Form 121. You have 14 calendar days to appeal from the date of the order. There is a fee to appeal the Conference Order if the appeal is based on a medical issue. This fee may be waived if you can prove the injured worker cannot afford to pay the by filing an Affidavit of Indigence and Request for Waiver of § 11A(2) Fees – Form 136. If either party appeals the Conference Order, a formal hearing before the same judge will be scheduled.
The Hearing is a more formal proceeding held before the same Administrative Judge who presided at the Conference. Massachusetts Rules of Evidence will apply and sworn testimony is taken. Witnesses are called and cross-examined by the opposing party. A stenographer records the proceedings.
The judge will render a final decision as a result of the Hearing in which he or she will either award benefits or not. The decision can be appealed to the Reviewing Board by either party on an Appeal to Reviewing Board – Form 112. This appeal can only be made of the party contends that the judge made an error or law in issuing their decision or during the Hearing. The appeal must be received within 30 calendar days from the date of the Hearing decision. There is an appeal fee equal to 30% of the State Average Weekly Wage in place at the time of the appeal. The fee may be waived by filing an Affidavit in Support of Request for Waiver of Filing Fee Under § 11C – Form 112A.