Finkelstein & Partners LLP – Boston Office
50 Congress Street,
Boston, MA 02109 (617)-580-3144
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About 95 percent of the businesses in Boston are sole proprietors or firms with fewer than 50 employees or that make less than $5 million in revenue each year. More than 40,000 small businesses call Boston home, providing more than 170,000 jobs and taking in a combined total of more than $15 billion in annual revenue.
However, despite the small size of these businesses, their owners must still follow all of the state’s business regulations, including providing workers’ compensation policies for their employees.
Sustaining an on-the-job injury can prove overwhelming. How will you pay for your medical treatment? Will your employer hold your job for you while you recover from the injury? Will you have the option to file a lawsuit against your employer, or does workers’ compensation constitute your only option for compensation?
An experienced Boston workers’ compensation lawyer from Finkelstein & Partners can help you obtain the maximum amount of medical and wage loss benefits after you suffer a workplace injury.
About Workers’ Compensation
Workers’ compensation constitutes a type of no-fault insurance policy that provides coverage of the cost of medical care for a work-related injury or illness, as well as temporary or permanent wage loss benefits. Workers’ comp also provides coverage for dependent family members of workers who die of a work-related injury. In Massachusetts, all employers must provide workers’ compensation for their employees, even small, family owned businesses.
Because state law requires your employer to provide an insurance policy on your behalf, you generally cannot use the personal injury claims process and the state’s civil court system to seek compensation for your injury through a personal injury lawsuit.
However, certain circumstances may qualify injured workers to file a personal injury lawsuit in lieu of a workers’ compensation claim, including:
Your employer had to provide a workers’ compensation policy for you under the law but failed to do so.
Your injury occurred as the result of an intentional act or willful misconduct on the part of your employer. A construction accident that occurred as a result of an OSHA violation would constitute an example of this.
Your injury resulted from third-party negligence. A third party is someone other than your employer or coworker. An example of third-party negligence resulting in a workplace injury would include a transportation accident that occurred while performing work-related tasks caused by another roadway user who is unaffiliated with your employer.
Medical benefits. Injured workers qualify for adequate and reasonable medical care for their work-related injuries and illnesses. For your first visit with a doctor through workers’ compensation, your employer has the right to select the healthcare provider you see. However, you may choose your provider for follow-up treatment after the initial visit.
Temporary total incapacity benefits. If your injury results in an inability to perform job-related tasks for a period longer than five days (the missed days do not have to be consecutive), you can receive 60 percent of your average weekly wage for up to 156 weeks.
Partial incapacity benefits. Often, an injured worker can perform some work-related tasks, but not all of them. If you must reduce your amount of work that results in a reduction of pay, you can obtain up to 75 percent of the amount you would receive to temporary total incapacity for a period of up to 260 weeks.
Permanent and total incapacity benefits. Injuries that result in a complete inability to earn an income are catastrophic injuries, and often involve damage to the brain or spinal cord. If you now suffer permanent and total incapacity as the result of a workplace illness or injury, you can receive two-thirds of your average weekly wage plus cost of living adjustments for as long as your disability lasts.
Permanent loss of function or disfigurement benefits. A lump-sum payment sometimes compensates for injuries that result in the loss of function of a body part or scarring and disfigurement. The amount of the payment depends on how much the permanent loss of function or disfigurement impairs your ability to earn an income, and the part of the body that is affected.
Survivor and dependent benefits. Some workplace accidents and exposures result in fatal conditions. The spouses and dependents of Boston workers who died of a workplace injury or illness can receive two-thirds of the worker’s average weekly wage in the year before his or her death. Spouses qualify for these benefits until they remarry.
Filing a Workers’ Compensation Claim
If you suffered an on-the-job injury or a work-related illness, you should take these steps to file your claim:
If you sustain an injury, immediately inform your employer. If you need medical attention, your employer will direct you to the healthcare provider that you should use for your initial appointment and will report your injury to their insurance provider. If seeking medical benefits only, your employer’s insurance provider will evaluate the claim for benefits. However, if you also seek wage replacement, you should submit your claim to the state’s Department of Industrial Accidents (DIA).
To file a claim with the DIA, you must download and complete Form 110 – Employee Claim. To complete this form, you will need to know information, such as the date of the illness, injury, or death; the first and fifth calendar day of work you missed; the name of the workers’ compensation carrier; the body parts involved and the injury or illness sustained; the type of benefits you wish to pursue; the anticipated length of your disability (if this information is available); where you first obtained treatment and the name of your current treating doctor. Make sure to attach copies of documentation that proves your injury. Accepted documentation includes unpaid medical bills, medical reports, and signed witness statements with the witness’ name provided. You can deliver these documents in person or mail them to the Department of Industrial Accidents, Dept. 110, Lafayette City Center, 2 Avenue de Lafayette, Boston, MA, 02111-1750. You should obtain two additional copies of this form, including one for the workers’ compensation carrier and another for your records.
Once the DIA has received your completed claim, it can respond in one of two ways. Either it can reject the claim and notify you of a reason for the rejection, or it can send a notice to you, your employer, and the workers’ compensation carrier with a date, time, and location to appear before a conciliator to discuss your claim.
If your claim is approved, you should begin receiving benefits in three to four weeks.
Reasons for a Workers’ Compensation Benefits Claim Denial
The main purpose of the DIA is to serve as a court system to resolve workers’ compensation disputes. One of the most common reasons for rejecting the claim is missing or inaccurate information, such as the proper name for the workers’ compensation insurance provider, the benefits you’re seeking, or the dates of the first and fifth day of missed work relating to the injury.
You may also receive a claim denial for the following reasons, including:
The injury did not occur at the workplace or from activities that fall within the normal scope of your employment.
The workers’ compensation policy doesn’t cover your injury. Often, mental health conditions don’t qualify for workers’ compensation coverage, unless the condition stems from severe injuries.
You waited more than 30 days to file your claim. Waiting to report an injury can result in negative consequences, as most insurance companies assume that if you sustained a serious injury, you would have sought assistance right away. Importantly, the statute of limitations for seeking benefits through workers’ compensation is four years from the date the injury or illness occurred. The additional time often proves necessary in cases involving a workplace illness that developed due to exposure to a toxic substance that occurred regularly over many years.
No one witnessed your injury and can confirm your story.
The injury resulted from horseplay, you intentionally caused the injury, or you became injured due to impairment by alcohol or drugs while working.
The information you provided in your claim contains discrepancies, and/or what appears in your medical records doesn’t match your argument.
You have a pre-existing condition, and the insurance provider believes it is your primary source of pain.
You refused to provide a recorded statement or documentation as requested by the workers’ compensation policy provider.
Your injury resulted from a physical altercation with another worker, third party, or customer, and you instigated the altercation.
Reasons To Talk With a Boston Workers’ Compensation Lawyer About Your Claim
Employers or insurance providers dispute about half of all workers’ compensation claims, so seek the assistance of an attorney.
Some of those reasons include:
You sustained an on-the-job injury, and your employer does not have workers’ compensation insurance.
You wish to file a workers’ comp claim but fear that your employer will retaliate, or you have filed a claim and feel you have faced retaliation as a result.
You want an experienced legal professional to assist you in filing your claim and ensuring that the claim contains the correct information and all required documentation.
You obtained a denial of your claim, and you wish to dispute the decision. The Massachusetts workers’ compensation appeals process has many layers and often confuses those unfamiliar with the process. An experienced workers’ compensation attorney can represent your case throughout all steps of appealing a claim denial.
You filed your claim more than two weeks ago and have not received a notification from the DIA.
Your doctor has released you to return to work, but you do not feel physically ready.
Your benefits are expiring, but you still need wage replacement due to an ongoing disability.
Your spouse or parent died in a workplace injury, and you want to know more about how to obtain survivor’s benefits.
You obtained benefits, but now your employer or the workers’ compensation insurance provider has requested a modification of or end to those benefits.
You sustained on-the-job injuries because of third-party negligence, and you wish to seek compensation from the liable party through a personal injury lawsuit.
Massachusetts requires most employers to carry workers’ compensation insurance to provide coverage for seasonal, part-time, and full-time employees. The law specifically states that an employee is “every person in the service of another under any contract of hire, express or implied, oral or written.” However, some exceptions exist.
Common exceptions include:
Seaman engaged in interstate or foreign business
Real estate agents or other salespeople who work for commission and have a contract that states they are not an employee under federal tax law
Taxi drivers who are not treated as employees under federal tax law
Employees engaged in foreign or interstate business and covered by other federal programs that provide compensation for injury or death
If you are unsure whether you qualify for workers’ compensation, an experienced Boston workers’ comp lawyer can review your case and give you your legal options.
Aside from the exceptions listed above, Massachusetts law requires employers to carry worker’s compensation coverage if they have one or more employees unless they choose to self-insure. If your employer is not self-insured or has not purchased the required workers’ comp coverage, you might still be able to receive benefits from your workplace injury or illness.
You must file a claim with the Massachusetts Department of Industrial Accidents (DIA). The Workers’ Compensation Trust Fund (WCTF) will provide weekly benefits, similar to workers’ compensation coverage, if it approves your claim.
Employees who suffer injury or illness in the workplace must miss at least five days of work before they can file a workers’ compensation claim. Next, their employer must fill out and submit a report to the Massachusetts DIA and their workers’ compensation insurance carrier.
Employers have seven days after their employee missed five days of work to submit the form and the insurance carrier has 14 days to investigate the claim and decide whether to pay benefits. If an employer does not fill out the proper paperwork within 30 days of the injury or illness, the employee must report the injury to the insurance company. Ultimately, you should file a claim as soon as possible after suffering a workplace injury or contracting an illness.
Massachusetts law provides seven different benefits for workers with approved workers’ comp claims.
They include:
Temporary Total Incapacity Benefits. These benefits are 60 percent of an employee’s gross average weekly wage, and injured employees can collect them for up to three years.
Partial Incapacity Benefits. These benefits compensate injured employees for up to 75 percent of temporary total incapacity benefits for up to five years. Employees who can still work but need to work fewer hours or take a position that pays less typically qualify for partial incapacity benefits if their claim is approved.
Permanent and Total Incapacity Benefits. These benefits are two-thirds of an employee’s average weekly wage up to the state’s maximum allowed amount. They compensate employees with permanent disabilities who cannot return to work because of a workplace injury or illness. Permanently disabled employees can receive permanent and total incapacity benefits indefinitely.
Medical Benefits. Workers’ comp pays for medical expenses related to workplace injury and illness, such as prescriptions, mileage to and from the doctor, hospitalization, and various other reasonable medical expenses.
Permanent Loss of Function and Disfigurement Benefits. Those who have suffered a permanent loss of certain bodily functions or have scars or disfigurement on their face, hands, or neck qualify for a one-time payment. You receive these benefits in addition to other disability and medical benefits.
Survivors’/Dependents’ Benefits. Surviving spouses and minor children of an employee who died from a workplace illness or injury receive weekly benefits equal to two-thirds of the employee’s average weekly wage up to the state maximum.
Burial Expenses. If an employee dies from a work-related injury or illness, workers’ compensation pays for burial expenses.
Yes, but some caveats exist. Your employer has the right to choose your healthcare provider for your first visit to the doctor. After your initial visit, you can pick your doctor. However, the insurance company might want to have you evaluated periodically. They have the right to send you to one of their doctors to evaluate your level of disability.
If your claim is approved, you can expect to receive benefits about three weeks from the date of your injury at the earliest. Your employer has seven days to report your injury or illness to their insurance carrier once you have missed five or more days of work. The insurance company has 14 days from receiving the report to investigate your claim.
They must mail you a check or send you a letter that explains their reason(s) for denying your claim. If your employer does not report the claim, you can file an employee claim form with the Department of Industrial Accidents (DIA) 30 days after your injury.
In most cases, you cannot sue your employer for a work-related injury or illness, even if it happened because of their negligence. Workers’ compensation exists to protect employers from employee lawsuits and ensure employees get proper medical treatment and benefits regardless of fault. Some exceptions allow employees to sue.
For example, employers who do not carry the required insurance and employers who retaliate against employees who file a workers’ comp claim potentially open themselves to financial liability in a lawsuit. An experienced Boston workers’ compensation attorney can review your case and determine if you have grounds to sue your employer.
If an outside party’s negligence led to your work-related injury or illness, Massachusetts law permits you to bring a lawsuit against them. Workers’ compensation only partially replaces wages and does not compensate for non-economic damages like pain and suffering and loss of consortium.
Examples of scenarios that sometimes open up a third party to liability for a work-related injury or illness include:
Contracting an illness or condition from exposure to toxic substances in the workplace
Sustaining injuries at a job site or customer location while on-the-job
Sustaining injuries in a train, taxi, or rideshare accident while traveling for work
Sustaining injuries in a traffic crash while operating a company vehicle
Suffering injuries because of defective equipment, tools, or other products while at work
Your Boston workers’ compensation lawyer can evaluate your case and identify potential third parties who might be liable for your injury or illness.
Your employer cannot legally fire you for filing a workers’ comp claim; however, this does not mean you might not lose your job after filing a claim. The law prohibits employers from retaliating against employees for filing a workers’ compensation claim, but this doesn’t mean your employer won’t try to find another reason to fire you.
Demotion, pay decreases, forced transfers, threats, and suspension are other forms of illegal retaliation against employees who file a claim. If you suspect your employer fired you because you reported a work-related injury or illness, consult a Boston workers’ compensation lawyer as soon as possible to learn about your legal options.
Your employer’s workers’ comp insurance carrier might deny your claim for various reasons. If you reported your injury late to your employer or if your employer did not report your injury in time, the company could deny your claim. In other cases, an employer might dispute that an injury or illness is related to work. If the insurance company denies your workers’ comp claim, you have the right to file a claim with the Massachusetts Department of Industrial Accidents (DIA). The DIA strongly recommends employees seek legal counsel for their appeal.
The first step of the appeals process requires you to complete and submit an Employee’s Claim (Form 110). Include all medical evidence, such as bills and reports, that supports your workers’ compensation claim. Once the DIA receives your form, they will schedule a Conciliation within about two weeks to begin the dispute process.
Conciliation is a meeting to facilitate a voluntary agreement between you and the insurance company. If you cannot reach an agreement, the DIA will refer your case to a judge for a conference. Typically, you must wait two or three months for a conference, a legal proceeding before an administrative judge.
The judge orders the insurer to pay your benefits or issues an order that they do not have to pay. If the judge does not rule in your favor, you can request a formal hearing in front of another judge. Your attorney can guide you through the complex appeals process.
It’s in your best interest to have an experienced attorney on your side, and, as mentioned above, the DIA recommends legal representation when the denial of a claim is in play.
Not only will your lawyer represent you in legal proceedings, but they can:
Investigate the event that led to your workplace injury or occupational illness
Review safety practices at your place of employment
Interview colleagues and other witnesses
Gather relevant paperwork to support your workers’ comp claim, such as medical records, police reports, and safety records
Bring a claim against your employer for retaliation
Review your case to look for third parties who could be liable for damages related to your injury or illness
Negotiate with the insurance carrier, if applicable
Yes. Workers’ compensation lawyers accept new clients on a contingent fee basis. You do not have to worry about paying money upfront or out-of-pocket, so you can afford to get the legal help you need. Instead, your Boston workers’ compensation lawyer will deduct attorney fees and other legal costs from any money they secure for you for damages related to your injury or illness.
Need Help With Your Workers’ Compensation Claim? Trust Finkelstein & Partners
Sustaining an injury or illness while at work can prove stressful. Not only will you face having to miss work to recover from your injury, but you also must deal with the very real concerns about how to pay your bills while unable to work.
The experienced Boston workers’ compensation lawyers from Finkelstein & Partners can take some of the complexity out of the process by gathering and presenting the documentation you need to file or resolve your claim favorably. We have assisted injured workers throughout the region for 60 years.
For more information about what we can provide or answers to your questions about obtaining workers’ compensation in Boston, contact us online or call (877) 472-3061. Contact us today for your free case evaluation, during which you can discuss the details of your injury or illness, ask questions about your legal options, and determine your eligibility to pursue compensation to cover the full cost of your injuries. Don’t hesitate to reach out today!
