Workers’ Compensation FAQs - Part 3

Generally, the answer is "no". The law has been changed for several years, and it now states that an employee's purely voluntary participation in recreational activities, even though sponsored by the employer, is not covered by the Workers' Compensation Act. Similarly, injuries at company picnics or Christmas parties which had been covered years ago are no longer considered compensable as long as the party was solely recreational. If it was coupled with a seminar or some other learning experience for work or an office meeting, then an argument could be made for coverage.

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Certain procedures must be followed to terminate or reduce benefits, however the procedure for modification or termination varies greatly depending on how long the insurance company has been paying benefits.

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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. If you have received an Agreement to Extend 180 Day Payment Without Prejudice Period (Form 105) by your employer’s workers' compensation insurance company, you should immediately contact one of our Boston workers’ compensation attorneys immediately.

The first 180 days of disability payments

If the insurer has commenced benefits timely, namely within 14 days of notice, the insurer is allowed to stop payments to the employee without obtaining approval of the 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.

AFTER 180 DAYS

Once the 180 day period expires the Workers' Compensation Act makes it much more difficult for the insurer to stop benefits. Basically, they cannot stop benefits on their own. The reason must be specific and be one of the following: 1) The termination was ordered by a judge at the DIA; 2) was assented to in writing by the employee; 3) the employee returned to work with no wage loss; 4) the insurer has a medical report from the attending physician indicating that the employee is capable of returning to work with a certification that the attending doctor has reviewed a written job description of the employee's job and the insurer has a letter from the employer indicating that said job is open and ready; 5) where the employee has exhausted the maximum period of benefits; 6) were terminated because the employee failed to provide the insurer with a written request for earning records and; 7) several other technical and specific reasons that are beyond the scope of this brochure. The important thing to remember, however, is that after 180 days of payment, the insurer cannot stop compensation on their own whim, whereas they can basically do that prior to the 180th day.

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An employee who returns to work is given a 28 day trial work period. The insurer must resume the employee's workers' compensation if within 28 calendar days of returning to employment, the employee leaves work and within 21 days thereafter informs the employer and the insurer by certified mail that the disability resulting from the injury renders him or her incapable of performing such work. This means that you are given 28 days to see how you are going to do and if you cannot continue work as a result of your injury, you merely let your employer know in writing, by certified mail, and they have to resume your checks. There is no requirement that you have to provide a doctor's report to substantiate further disability. While that of course is helpful and will eventually be needed, it is not a pre-requisite to the insurer resuming your benefits at that point.

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Section 75A of the Workers' Compensation Law provides that when an injured worker returns to work he must be given a preference for re-hiring for any vacancies that may be present at the job. The law does not require that the employer discharge someone already holding a job that was filled while the worker was out. It does, however, mean that the injured returning worker gets preference for re-hiring. You may also have certain rights under your union collective bargaining agreement if you are a union member.

Also note that employees who settle their case, as described later in this brochure, may not be able to return to work with the same employer for a certain number of months following the settlement. This will be discussed later under the section concerning lump sum settlement.

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If the injured worker due to a work related injury cannot return to his or her former work, but is able to do some lighter work, Massachusetts General Laws, Chapter 151 B, the so called State Anti-Discrimination Law, says that handicapped individuals are entitled to a "reasonable accommodation" to help them get back to work. These accommodations include change of job, change in hours, requesting assistance from others on the job, even special equipment such as special chairs to make the worker more comfortable, etc. The DIA does not get involved in enforcing this section, however the Massachusetts Commission Against Discrimination may sue in court or help the employee get these reasonable accommodations. There is also a new Federal Law, the Americans With Disabilities Act (ADA). It is beyond the scope of this brochure to go into detail, but suffice it to say, there are some remedies in this area.

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Settlements are possible on workers' compensation claims. Lump sum settlements are a final termination of the rights to receive further benefits from the insurer on a weekly basis for a particular injury. In cases where liability has been established, a lump sum will not close out rights to future medical treatment. There is no guarantee or right to a lump sum settlement. A settlement is only achieved if both the insurer and the employee agree to a certain figure. In most instances an employer must consent to their insurance company making a settlement offer to an injured employee. A judge cannot order or set a lump sum settlement figure.

For a settlement to be approved by a judge, it must be found to be in the employee's best interest. By settling your case you are not giving up your rights to go back to work for the same employer. However as stated earlier, the law creates a presumption that you are unable to return to work for the same employer for whom you were working while you were injured. The presumed period of disability is one(1) month for every fifteen hundred dollars ($1,500.00) in settlement proceeds. For example, if you receive fifteen thousand dollars ($15,000.00) net from your settlement, it would be presumed that you are unable to return to work at your former job for 10 months and your former employer would not have to re-hire you for that 10 month period. This however does not prevent you from seeking work elsewhere. Also as a requirement for settlement approval, the employee must, if they are involved in a schooling program or some other vocational rehabilitation plan approved by the Workers' Compensation Board, have the consent of the Office of Education and Vocational Rehabilitation prior to having a settlement approved.

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Insurance companies will be represented at the Department of Industrial Accidents, so it is strongly urged that injured workers also have experienced counsel. In addition, the Workers' Compensation Law has become extremely complex. Previously, the Workers' Compensation Law and procedures at the Department of Industrial Accidents were simple and summary, however the present law is significantly more complicated.

For the most part, legal fees are paid by the insurer to the employee's attorney. The only exception to that is in cases of lump sum settlements. On an accepted liability case, the legal fee on a lump sum settlement is twenty percent of the settlement amount. On an unaccepted liability case, the legal fee is fifteen percent of the settlement amount. The settlement and legal fees must be approved by a judge.

Other than settlement fees, however, legal fees are paid by the insurer, and they vary depending on the amount of legal work and at what stage in the proceedings the attorney completes his work. For example, an attorneys work up through the conference level may result in legal fees of anywhere from five hundred fifty dollars up to one thousand five hundred dollars ($1,500.00), which is paid by the insurer. Legal fees to an employee's attorney after completing a full hearing could result in a fee of over five thousand four hundred ($5,400.00), which is also paid by the insurer. In most cases, the attorney's out-of-pocket expenses are also paid by the insurer. However, there may be some costs that the employee may have to pay initially, and eventually seek reimbursement from the insurer. An employee who has questions should never be reluctant to call an attorney for a consultation since there is no charge or obligation whatsoever for a consultation.

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