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Case Considerations: Workers' Compensation

Basic Massachusetts Workers’ Compensation Case Processing Considerations

  1. 14 Day Response Period Runs From Workers’ Compensation Insurer’s Receipt of 1st Report Of Injury from the Employer
    1. A. Workers’ compensation insurer must either begin making payments within fourteen days of receiving a first report of injury from the employer or issue a written denial with the grounds stated therein for the denial
      1. Can pay for first 180 days without accepting liability
        1. a. Reserves right to discontinue benefits with one week’s notice during 180 day period
          1. 180 period subject to extension by agreement between parties
  2. Temporary total Disability payments under section 34
    1. Weekly Section 34 Compensation Rate is 60% of Average Weekly Wage (AWW)
      1. Average weekly wage is generally determined by wages during the 52 weeks before the accident date of the number of weeks worked before the accident date whichever is shorter
    2. Ceiling on Duration of Section 34, Temporary Total Disability payments – 3 years
    3. Procedural Effect of Exhaustion of Section 34 Benefits – must prove either a continuing partial disability or a permanent and total disability otherwise benefits will terminate
  3. Partial Disability under Section 35
    1. Rate Determination- 60% of difference between the average weekly wage before the injury and the weekly wage the employee is capable of earning after the injury but not more than 75% of section 34, temporary total disability rate
    2. Ceiling on Duration of Section 35 Partial Disability Payment- generally 260 weeks with some very limited exceptions
  4. Permanent and Total Disability under Section 34A
    1. General Standard- totally disabled from all forms of employment except those of a trifling nature
    2. Section 34A rate - .666 or two-thirds of AWW
  5. Procedural Mechanisms for Terminating or Modifying Weekly Benefits
    1. 7 days notice before payment without prejudice period ends
    2. Application to terminate or modify weekly benefits based upon an insurer’s medical exam
    3. Unilateral termination based upon report of treating physician or impartial examiner assigned by DIA stating employee capable of resuming former job or job that has been offered to him
  6. Employee’s Remedy or Response to Unilateral Termination or Insurer’s Application to Terminate of Modify
    1. Procure medical report(s) proving continuing disability
    2. File Claim for further compensation – starts litigation process
  7. Stages of Massachusetts Workers’ Compensation Litigation Process – case may be settled per agreement of the parties at any stage of the process
    1. Claim or application for discontinuance
    2. Conciliation – determination of whether minimum elements of a claim are present
      1. Conciliator attempts to facilitate settlement
    3. Conference – 1st time claim or application for discontinuance is argued by attorneys before DIA Administrative Judge
      1. Either side may appeal preliminary ruling within 14 days
      2. Either side may appeal preliminary ruling within 14 days
    4. Hearing – equivalent of trial –witnesses testify and a deposition may be scheduled of the impartial examiner and, in some cases, of other examining physicians at a later date within a time limit set by the court
      1. Administrative judge issues written decision on disability, the extent of disability and whether the disability is causally connected to the work accident
    5. Appeal of written decision by administrative judge – generally limited to errors of law – initial appeal is to DIA Review Board, subsequent further appeal may be taken to a Massachusetts Appeals Court
  8. Benefits that May be Due Employee Other than Weekly Disability Payments
    1. Section 36 provides specified amounts for certain permanent losses of bodily function and certain, specified types of disfigurement
  9. Attorney’s Fees
    1. Insurer or Workers’ Compensation Trust Fund pays fee in accordance with the statute if the employee has benefits awarded during any stage of the litigation process and the case remains unsettled
    2. Lump sum settlement – fee is 20% of any lump sum settlement if liability has been established before the settlement either by a decision of a judge or by the acceptance of liability by the insurer; fee if 15% if liability has not been established before the case settles

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