Workers’ Compensation – FAQs

If you are partially disabled, you are entitled to section 35 benefits. The section 35 rate varies depending upon the earnings capacity which is assigned. For example, if you have an average weekly wage (AWW) of $1000 per week, and you are assigned a $400/week earning capacity. You figure out the difference between what you were making and what you were assigned as an earning capacity. In this case: $1000 - $400=$600. You then take 60% of the difference; $600 x 60%=$360.

But the maximum amount one can receive under section 35 is 75% of the temporary total disability rate. So, in the above example, the total disability rate is 60% of the AWW, or $1,000 x 60%=$600. The maximum partial disability rate in this example is $600 x 75%=$450.

You are not “entitled” to a settlement. There is no guarantee of a settlement in workers’ compensation cases. Anyone who tells you that is not being truthful.

Whether or not a settlement takes place depends on a number of different factors, such as your ability to return to work, your current financial situation, and the prognosis of your work related injury or illness.

Sometimes a settlement is the right course of action. Other times it is not.

For example, if you were injured and the insurance company made a settlement offer, but you were scheduled for a surgery in the coming months, settling your case might not be the best course of action. If you closed out your case and then had a bad surgical result, you might wish you had not settled.

No. Not for the injury for which you’re claiming compensation. The Massachusetts Workers’ Compensation law has something called the exclusivity provision. It is an old section of the law, which came into being around the time the Workers’ Comp Act was created. Basically it says that when you are hired by an employer and you sustain a work related injury, you give up your right to sue your employer in tort and “elect” to go through the workers’ compensation system. This is something that is never explained when you sign up to work for an employer. But it is the law.

The reasoning behind this provision of the Workers’ Compensation Act was to facilitate quick resolution of claims, so that benefits would be paid quicker to someone who is out of work due to injury. In comparison, filing a civil action against the employer could take years.

There are circumstances which give rise to a separate causes of action against a third party.

For example, if a tool exploded in the employee’s face causing injury, it is possible to file an action against the manufacturer of the drill for a defective product.

This is a very common situation, and very difficult to give practical advice to.

Often times, when an employee is injured, the employer views the injured employee as an inconvenience and begins to act very mean and uncooperative.

If the injury gives rise to a comp claim, the employer is under an obligation to report the injury to their Workers’ Compensation Insurer within 14 days. Often times, they refuse to do so.

The bottom line is that there is no way to predict how an individual employer, or supervisor will react in the event that an employee is injured on the job. Situations like these are dealt with on a case by case basis, because every situation requires a different set of reactions specific to the situation.

It is important to contact an experienced Workers’ Compensation attorney as soon as possible, to advise you on the best way to proceed.

The short answer is that it can take months before your case goes before a Judge at the Department of Industrial Accidents.

This is why getting in touch with an attorney as soon as possible is so important.

The Insurer is perfectly within their right to deny payment. So, in situations like this, a claim for benefits must be filed as soon as possible.

Once that is done, the case will be scheduled for a conciliation. This is an informal meeting between both parties and a conciliator at the Department of Industrial Accidents, a mediator of sorts. At this time, the conciliator will determine if the matter should be sent forward to go before a Judge.

If the case gets “sent on,” it will be between 2-4 months before it will come before a Judge at a conference. At the conference, the Judge has the power to order the Insurer to pay benefits.

Often times the parties are able to agree to payments prior to going before a Judge. However, sometimes they are unable to come to an agreement, and the case must follow this process.

An appeal must be filed. There is a $650 appeal fee.

On appeal, the employee will be examined by a Board Impartial Physician. This doctor is one selected by the Judge’s office, and not by either party.

Once examined by the Impartial Physician, the case will get scheduled for a Hearing, in which testimony will be taken by the employee and other witnesses, if necessary.

Once the hearing is concluded, the Judge will then issue a written decision.

This is a very common question. The answer is No.

In the event that your Employer terminates your position, your rights to Workers’ Compensation benefits are not affected. You can still collect Workers’ Compensation benefits as if you were still an employee.

If this were not the case, many employers would simply fire an employee after they are injured, and escape having to pay any Workers’ Compensation, getting around having to carry Workers’ Compensation Insurance in the first place.

Fortunately, this is not the law. If you are fired before, during, or after receiving Workers’ Compensation benefits, your rights under the Mass Comp Law remains the same regardless.

This answer depends on your employment status.

If you are a regular, run of the mill, employee at will, then the only job protection available to you is provided under the Family Medical Leave Act (FMLA). Under the FMLA, Federal Law provides that an Employer must hold the job in question open for 90 days. If the employee in question has not returned to work within the 90-day period, the employer is then within their right to search for a replacement to fill that position.

If you are a union member, most collective bargaining agreements offer certain degrees of job protection in the event a member goes out of work due to disability. It is important to consult with your union rep as soon as possible following an injury.

If you are a civil servant, or work for any city, town, state, or municipality, you likely have job protection under the Civil Service Laws.

This is called “concurrent” employment, and you are potentially eligible to receive workers’ compensation benefits based on your wages from all your jobs.

There are, however, certain caveats.

First, your jobs must be “on the books.” Under the table jobs will not factor in to determining your workers’ compensation rate.

Second, the jobs in question must be “insured.” This means that for the job in question, the employer must have it’s own workers’ compensation insurance

So, for example, if you work at a grocery store, making $500 per week, and are injured at that job, you would be entitled to receive workers’ compensation lost wage benefits based on those earnings. Section 34 benefits would provide you 60% of your gross wages, or $300 ($500 x 60%).

If, however, you were, at the time of the injury, concurrently employed at a movie theater making an extra $200 per week, those wages would be factored in. So, your gross wages would be $700 ($500 + $200). You would therefore receive workers compensation lost wage benefits of $420 ($700 x 60%) per week.

Yes. The rates are set at the Department of Industrial Accidents.

These rates changes periodically.

To see the current rates, visit the Department of Industrial Accidents website.

• As of 10/1/16 the maximum workers comp rate is $1,291.74 per week.
• As of 10/1/16 the minimum workers comp rate is $258.35 per week.

Workers' Comp cases in Massachusetts are administered through the Department of Industrial Accidents (DIA), an administrative agency of the Commonwealth of Massachusetts. It is also known as the Workers' Comp Board, or simply, the Board.

There are five offices in Massachusetts: Boston, Lawrence, Fall River, Worcester, and Springfield.

Your case will be handled based on your current address. Generally, this is the Board closest to you.

At The Troupe Law Office, we have experienced workers' compensation attorney's practicing all throughout Massachusetts.

We have represented cases at all of the DIA office in Massachusetts.

While our office is located on the North Shore of Boston, we handle cases throughout the Commonwealth.

Common cities on the North Shore include Peabody, Salem, Lynn, Revere, Danvers, Saugus, Beverly, Lynnfield, Gloucester, Newburyport, Lawrence, Lowell, North Andover, Andover, Methuen, Haverhill, Woburn, Billerica, Reading, Wakefield, etc.