Workman’s Compensation Claims
What is the role of the division of insurance regarding workers’ compensation?
The Division of Insurance (DOI) has broad authority to regulate companies who write workers’ compensation insurance. The DOI has several responsibilities including the authority to approve or disapprove workers’ compensation rates, industrial classifications, rating plans and many sorts of policy forms. They also run the assigned risk pool, although they have appointed the WCRB (Worker’s Compensation Rating and Inspection Bureau, 101 Arch Street, Boston, MA 02109, (617)439-9030) to perform most of the day-to-day operations, such as assigning employers to particular servicing carriers. The Division also regulates self insurance groups, (but not self-insured employers) and workers’ compensation preferred provider organizations. In certain instances they hold hearings on rates, classifications, premiums or other matters involving workers’ compensation, including loss reserves.
The Division does not oversee the relationship between insurance companies and injured workers. Disputes over claims for benefits by employees, health care providers or others, are most appropriately handled by the Department of Industrial Accidents located at 600 Washington Street, Boston, Massachusetts 02111. Their telephone number is (617) 727-4900.
WHO HAS TO HAVE WORKERS’ COMPENSATION INSURANCE?
Any person or business that employs workers must purchase workers’ compensation insurance except (i) individuals employing people to do work on their own homes, (ii) non-profit corporations with no paid staff, and (iii) corporations in which each employee is an officer/director who owns at least 25% of the corporation and each has given up his/her right to workers’ compensation benefits in the state.
I AM SELF-EMPLOYED AND WAS TOLD BY AN INSURANCE AGENT THAT I CANNOT GET COVERAGE FOR MYSELF BUT MANY PEOPLE WON’T HIRE ME UNLESS I HAVE COVERAGE. WHAT AM I SUPPOSED TO DO?
As of October 23, 2002, sole proprietors and partners in partnerships will be able to buy workers’ compensation coverage for themselves as well as for their workers. It remains an option for sole proprietors to purchase (less expensive) workers’ compensation policies that will cover only their employees. As of the same date, those choosing to incorporate now have the option to waive all their rights to coverage under the workers’ compensation laws if they own 25% of the corporation. The forms needed to make this election are available at the Department of Industrial Accidents.
MY ACCOUNT WAS AUDITED AND I DISAGREE WITH MY INSURER OVER THE CORRECT PREMIUM. HOW CAN I DISPUTE THEIR RESULTS?
If you believe that you are being charged an incorrect amount, you can submit a written request to the WCRB asking that it review your case as to the correct application of the rating system. If you disagree with the WCRB’s finding, you have 30 (thirty) days to appeal in writing to us. The WCRB is located at 101 Arch Street, Boston, Massachusetts 02210. The telephone number is (617) 439-9030 and the fax number is (617) 439-6055.
CAN AN INSURER CANCEL MY POLICY IN MID-TERM?
An insurer can cancel a policy mid-term for only three reasons: (i) non-payment of premium, (ii) fraud or material misrepresentation or (iii) a substantial increase in the hazard being insured.
HOW CAN I GET THE INSURANCE NECESSARY TO STAY IN BUSINESS IF MY INSURER HAS CANCELED MY COVERAGE EITHER MID-TERM OR AT THE END OF THE POLICY?
Your agent can apply to the Massachusetts Assigned Risk Pool for coverage if two carriers turn you down. The WCRB, who manages the pool, will then assign you to one of a number of carriers which will handle your business just as if it were covering your losses itself and you will be charged at the same rate. However, certain premium discounts might not be available to you. It’s important to remember, though, that if your cancellation was the result of non-payment of premium, the Pool will not issue a policy until you have made all payments that are due to your former carrier.
I HAVE AN ASSIGNED RISK POLICY AND I AM ENGAGED IN A CLASSIFICATION DISPUTE WITH MY CARRIER. CAN THEY CANCEL ME IF I REFUSE TO PAY THEM WHAT THEY BELIEVE I OWE?
Employers in the Pool that are threatened with a cancellation that they believe is unjustified have the right to appeal these within ten days of receiving the notice. The appeal should be directed to the Office of Insurance at the Department of Industrial Accidents, 600 Washington Street, Boston, Massachusetts 02111. That office has the authority to prevent cancellation until the dispute is resolved.
WHOM CAN I CALL IF I WANT TO VERIFY THAT THE RATE MY INSURER IS CHARGING FOR MY CLASSIFICATION IS CORRECT FOR THE UPCOMING YEAR?
You can call the WCRB at (617) 439-9030 or send us a postcard.
MY WORKERS’ COMPENSATION PREMIUMS CONTINUE TO RISE. IS THERE ANYTHING THAT CAN BE DONE TO CONTROL THE COST?
If you are paying more than $500.00 in annual premiums, then your costs, at least to some extent, will be a function of your losses. If you can get your losses down, your premiums will come down. It is very important for you to take an active interest in matters such as safety, the medical management of claims and early return to work for any injured workers. If you are in the assigned risk pool, and are paying over $5,000.00 a year in premium, the odds are that your agent or broker may be able to find voluntary coverage for you. If he or she is successful, you may then be eligible to receive a stock or non-stock premium discount. Ultimately, employers pay the costs of losses to carriers plus the costs of the carriers operating. The more employers do to control or prevent losses, the less expensive workers’ compensation will be for all employers. Finally, employers in the Pool can get up to 15% premium credits for hiring a Qualified Loss Management firm, to help them contain costs. Your agent can provide you with a list of such firms.
I BELIEVE THAT MY EXPERIENCE MODIFICATION HAS GOTTEN WORSE AND MY ARAP (ALL RISK ADJUSTMENT PROGRAM) CHARGE HAS GOTTEN HIGHER BECAUSE OF ONE OR MORE CLAIMS THAT I CAN PROVE WERE FRAUDULENT. IS THERE ANYTHING I CAN DO ABOUT THIS?
Yes. Allegations of fraud should be reported to the Insurance Fraud Bureau (“IFB”) (617) 439-0439 which has the power to investigate these allegations. Experience modifications may be recalculated when paid workers’ compensation claims are later determined to be “noncompensable”. Administrative Judges at the DIA have the power to make such determinations. Third party claim forms may be obtained from any DIA office.
WHAT IS THE ROLE OF THE DIVISION OF INSURANCE REGARDING WORKERS’ COMPENSATION?
The Division of Insurance (DOI) has broad authority to regulate insurance companies who write workers’ compensation insurance. It also oversees group self- insurance plans. The Division does not oversee relationships between insurance companies and individual injured workers. Disputes over claims for benefits by employees, health care providers or others, are handled by the Department of Industrial Accidents. This state agency is located at 600 Washington Street, Boston, Massachusetts 02111. The telephone number is (617) 727-4900.
WHO HAS TO HAVE WORKERS’ COMPENSATION INSURANCE?
Any person or business that employs workers must purchase workers’ compensation insurance except (i) individuals employing people to do work on their own homes, (ii) non-profit corporations with no paid staff, and (iii) corporations in which each employee is an officer/director who owns at least 25% of the corporation and each has given up his/her right to workers’ compensation benefits in the state.
WHAT GENERALLY ARE THE BENEFITS?
There are two kinds of benefits available under workers’ compensation. The first replaces some or all of your pre-injury wage. The second deals with your medical and vocational rehabilitation.
I AM INJURED ON THE JOB AND NOW MY BOSS WANTS TO FIRE ME. I WILL LOSE MY HEALTH INSURANCE IF I LOSE MY JOB. CAN MY BOSS DO THIS?
People with disabilities, whether caused by a work accident or otherwise have certain protections under both federal and state laws. Maybe your employer is not familiar with modern vocational rehabilitation methods. Call your employer and the adjuster assigned to manage your workers’ compensation claim today and tell them that you want to return to work as soon as possible. Professional vocational rehabilitation workers can help assess the job requirements, the accommodations that might be needed temporarily or for the long term, and see what can be done to help. Not everyone will be able to return to their former job with their employer, but many can. Others can return to their former employer in a different job. A few will have to find employment elsewhere, of course. Before you resign yourself to a job loss, ask for help. Last, should you lose your job because of your disability, which is possible under certain circumstances, and if your employer had 20 or more employees most of the time last year, a federal law called COBRA usually provides for continuation of medical benefits for a limited period of time. Ask your employer for information about eligibility and costs.
1.) WHAT IS WORKERS COMPENSATION?
If an Employee is injured performing work-related duties, the employee may be entitled to workers compensation benefits. These benefits are established by the Workers Compensation Act (M.G.L. c. I52). This statute is governed by the Department Industrial Accidents.
2.) WHERE IS THE DEPARTMENT OF INDUSTRIAL ACCIDENTS LOCATED?
Main Office:
Dept. of Industrial Accidents
600 Washington Street, 7th Floor
Boston, Massachusetts
Other locations:
Fall River
Worcester
Springfield
Lawrence
Where you live determines which office administers your claim. For more information or locations, you may call the Department of Industrial Accidents at (617) 727-4900.
3.) WHAT DO I DO IF I AM INJURED AT WORK?
Immediately report the injury to your employer and complete an accident report as soon as possible. Seek medical attention at a medical facility of your choosing as soon as possible. Be sure to inform your medical facility as to how and where your accident occurred. Secure the names of any witnesses to your accident, along with contact information for these individuals. Please note, never sign any documents that you do not understand, and never give a recorded statement without first consulting with an attorney.
4.) IF I AM INJURED AT WORK, HOW LONG WILL IT BE BEFORE I BEGIN RECEIVING BENEFITS?
You must be unable to receive full wages for five or more days as a result of your work injury before your employer has an obligation to report your injury to the insurer and to the Department of Industrial Accidents (Employers First Report of Injury). The insurer then has 14 days from receipt of the employers first report, to investigate your claim, and to make a decision as to whether they will pay or deny you benefits. The insurer must notify you of their decision in writing. However, even if the insurer decides to make payments to you at this point in time, they may still terminate your benefits at any time within the first 180 days of your disability, as long as they give you seven days notice of termination.
5.) WHAT DO I DO IF THE INSURER DENIES MY CLAIM, OR TERMINATES MY BENEFITS WITHIN THE 180-DAY PERIOD?
You should consult with an attorney who has experience handling workers compensation claims to determine what your rights and remedies are under the Workers Compensation Act. There is no charge for a consultation with an attorney relative to a workers compensation claim, as attorney fees are set forth under the Workers Compensation Act.
6.) IF I AM ENTITLED TO WORKERS COMPENSATION HOW MUCH WILL I BE PAID IN WEEKLY BENEFITS?
If you are found to be totally disabled, you are entitled to 60% of your average weekly wage. If you are found to be partially disabled, an Administrative Judge will determine what your benefit rate will be by determining how much you can earn post injury, versus your pre-injury average weekly wage. Your weekly benefit will be 60 % of the difference between the earning capacity and your average weekly wage. If you are found to be totally and permanently disabled, your benefit rate will be two-thirds of your average weekly wage, and you may be entitled to a cost of living adjustment. All workers compensation payments are tax-free.
7.) HOW LONG WILL I BE ELIGIBLE TO RECEIVE THESE BENEFITS?
If your injury was after December 24, 1991, then you can receive temporary total benefits for up to 156 weeks and partial disability for up to 260 weeks. However, the combination of temporary total benefits, and temporary partial benefits, cannot exceed 364 weeks (7 years).
8.) I WAS INJURED AT WORK A YEAR AGO AND MY CONDITION HAS GOTTEN WORSE. HOW LONG DO I HAVE TO FILE A WORKERS COMPENSATION CLAIM?
An employee has four years from the date that he or she first became aware that the disability arose out of their employment, within which to file a claim.
9.) I SUFFERED A SEVERE BURN TO MY FOOT AT WORK, AND I AM LEFT WITH PERMANENT SCARRING, CAN I RECEIVE BENEFITS FOR MY SCARRING?
Unfortunately, recovery for scar-based disfigurement is limited to the face, hands, and neck. A scar to any other body part is not compensable under the Workers Compensation Act.
10.) I SUSTAINED A TORN ROTATOR CUFF AT WORK. CAN I RECEIVE COMPENSATION FOR MY PERMANENT LOSS OF FUNCTION?
Yes, Section 36 of the Act provides for specific compensation for losses of function to the various body parts. You should consult an experienced attorney to ensure that you receive the correct amount of benefits under the Act.
11.) I WAS INJURED AT WORK AND JUST FOUND OUT MY EMPLOYER DOES NOT HAVE WORKERS COMPENSATION INSURANCE. CAN I STILL COLLECT WORKERS COMPENSATION BENEFITS?
Yes. You may be eligible to collect benefits through the Workers Compensation Trust Fund. In order to file a claim against the Trust Fund, certain preliminary requirements must be met. It is advisable for you to consult with an experienced attorney to ensure that correct procedures are followed. Additionally, you may be entitled to commence a tort action against your employer.
12.) I RECENTLY RECEIVED A LETTER IN THE MAIL FROM AN INSURANCE COMPANY INSTRUCTING ME TO APPEAR AT A MEDICAL EXAMINATION, DO I HAVE TO GO?
Yes, you have a duty to appear and cooperate with this examination. If you refuse to submit to such an examination, or obstruct it, your weekly benefits may be suspended or forfeited. If requested, the insurer must send to you a copy of their doctors report, and reimburse you for all reasonable travel.
13.) I AM PRESENTLY TREATING WITH A DOCTOR THAT I HAVE CHOSEN, CAN THE INSURANCE COMPANY REQUIRE ME TO SWITCH DOCTORS?
No, you have the right to treat with a doctor of your choice. The insurer cannot tell you where or with whom you should treat. However, if you do decide to switch doctors, you should be aware that you may only change your treating physician once in a specific specialty.
14.) AT THE TIME I WAS INJURED, I WAS ALSO WORKING PART-TIME AT A SECOND JOB, WHICH I CAN NO LONGER PERFORM BECAUSE OF MY ACCIDENT. HOW DOES THIS AFFECT MY WEEKLY BENEFIT?
Under the Act, your total wages earned from all insured employers may be calculated to determine your Average Weekly Wage.
15.) I AM A UNION WORKER WHO WAS INJURED ON A PUBLIC WORKS PROJECT. SHOULD MY FRINGE BENEFITS BE CALCULATED IN DETERMINING MY AVERAGE WEEKLY WAGE?
Yes, in most cases, under the Workers Compensation Act as well as Massachusetts General Laws, your employer contributions to your health and welfare, pension, and annuity should be included in determining your Average Weekly Wage.
16.) I AM RECEIVING WORKERS COMPENSATION BENEFITS; CAN I ALSO RECEIVE SOCIAL SECURITY DISABILITY BENEFITS?
Yes, you are entitled to apply for, and receive Social Security Disability benefits while you are receiving workers compensation benefits. However, you should be aware that the amount of Social Security Disability benefits you receive may be affected by your workers compensation benefits.
17.) I WAS INJURED ON THE JOB DUE TO THE NEGLIGENCE AND CARELESSNESS OF A WORKER FROM ANOTHER COMPANY. DO I HAVE ANY RIGHTS AGAINST THE WORKER AND HIS COMPANY?
Yes, in situations where someone other than your employer or co-worker caused your injury, you may pursue what is known as a Third-party Action. This entitles you to relief for pain and suffering, to which you are otherwise not entitled under the Workers Compensation Act. In such cases, the insured worker should be aware that the workers compensation insurer has the primary lien on any recovery from a negligent third-party. An attorney seasoned in handling cases of this sort can often negotiate a compromised payback to the workers Compensation insurer, on behalf of the injured employee.
18.) I AM RECEIVING WORKERS COMPENSATION BENEFITS DOES THE INSURANCE COMPANY HAVE TO SETTLE MY CASE?
No, there is no obligation on the part of the insurance to offer what is called a lump sum settlement. However, experienced insurance claims representatives, or their attorneys may offer a settlement to you. Therefore, it is important that you consult with an experienced workers compensation attorney before agreeing to accept such a settlement. There are many issues to consider before settling your case, such as vocational assistance, payment of medical bills, and the effect that such a settlement may have upon the receipt of other benefits
19.) IF I SETTLE MY CASE, WILL THE INSURANCE COMPANY CONTINUE TO PAY MY MEDICAL BILLS?
Not necessarily, it would depend on whether that settlement is made with liability, which would mean the insurance company would be responsible for payment of reasonably related medical expenses.
20.) I WAS INJURED AT MY JOB AND MY DOCTOR NOW TELLS ME I WILL NEVER BE ABLE TO RETURN TO THAT TYPE OF WORK, WHAT ARE RIGHTS?
Under the Workers Compensation Act, you have the right to seek vocational counseling, which is administered through the Department of Industrial Accidents. If you are found suitable for vocational services, you may be eligible for job placement, or for retraining, in an effort to place you in an occupation that pays very close to your pre-injury wage.
For a free initial consultation and answers to other questions you may have about the workers’ compensation system, contact us via e-mail with a brief description of your situation or reach us by phone at our Downtown Boston, Hyde Park, or Braintree, Massachusetts, office locations.
http://www.pulgininorton.com/CM/Custom/FAQ-Workers-Compensation.asp
What is workers’ compensation?
Workers’ compensation is a state-mandated insurance program that provides compensation to employees who suffer job-related injuries and illnesses. While the federal government administers a workers’ comp program for federal and certain other types of employees, each state has its own laws and programs for workers’ compensation. For up-to-date information on workers’ comp in your state, contact your state’s workers’ compensation office. (You can find links to the appropriate office in your state on the State Workers’ Compensation Officials page of the U.S. Department of Labor’s website.)
In general, an employee with a work-related illness or injury can get workers’ compensation benefits regardless of who was at fault — the employee, the employer, a coworker, a customer, or some other third party. In exchange for these guaranteed benefits, employees usually do not have the right to sue the employer in court for damages for those injuries.
Who pays workers’ compensation benefits?
In most states, employers are required to purchase insurance for their employees from a workers’ compensation insurance company (also called an insurance carrier). In some states, however, very small companies (with fewer than three or four employees) are not required to carry workers’ compensation insurance. In some states, larger companies that are clearly financially stable are allowed to act as their own workers’ compensation insurance companies (also called self-insuring).
When a worker is injured, his or her claim is filed with the insurance company or self-insuring employer, which pays medical and disability benefits according to a state-approved formula.
Are all on-the-job injuries covered by workers’ compensation?
Workers’ compensation covers most, but not all, on-the-job injuries. The workers’ compensation system is designed to provide benefits to injured workers, even if an injury is caused by the employer’s or employee’s carelessness. But there are some limits. Generally, injuries that happen because an employee is intoxicated or using illegal drugs are not covered by workers’ compensation. Coverage may also be denied in situations involving:
- self-inflicted injuries (including those caused by a person who starts a fight)
- injuries suffered while a worker was committing a serious crime
- injuries suffered while an employee was not on the job, and
- injuries suffered when an employee’s conduct violated company policy
Does workers’ compensation cover only injuries or does it also cover long-term problems and illnesses?
Your injury need not be caused by an accident — such as a fall from a ladder — to be covered by workers’ compensation. Many workers receive compensation for injuries that are caused by overuse or misuse over a long period of time — for example, repetitive stress injuries such as carpal tunnel syndrome or back problems. You may also be compensated for some illnesses and diseases that are the gradual result of work conditions — for example, heart conditions, lung disease, and stress-related digestive problems.
Are You Covered by Workers’ Compensation?
Most workers are eligible for workers’ compensation coverage, but every state excludes some workers. Exclusions often include: business owners independent contractors casual workers domestic employees in private homes farm workers maritime workers railroad employees, and unpaid volunteers. Check the workers’ compensation law of your state to see whether these exclusions affect you. Federal government employees are also excluded from state workers’ compensation coverage, but they receive workers’ compensation benefits under a separate federal law. In addition, some states do not require workers’ compensation coverage of employers having fewer than a designated number of employees — three to five, depending on the state. So, if you work for one of these employers, you may be excluded from the state program.
Do I have to be injured at my workplace to be covered by workers’ compensation?
No. As long as your injury is job-related, it’s covered. For example, you will be covered if you are injured while traveling on business, doing a work-related errand, or even attending a required business-related social function.
What kind of benefits will I receive?
The workers’ compensation system provides replacement income, medical expenses, and sometimes, vocational rehabilitation benefits — that is, on-the-job training, schooling, or job placement assistance. The benefits paid through workers’ compensation, however, are almost always relatively modest.
If you become temporarily unable to work, you’ll usually receive two-thirds of your average wage up to a fixed ceiling. But because these payments are tax-free, if you received decent wages prior to your injury, you’ll fare reasonably well in most states. You will be eligible for these wage-loss replacement benefits as soon as you’ve lost a few days of work because of an injury or illness that is covered by workers’ compensation.
If you become permanently unable to do the work you were doing prior to the injury, or unable to do any work at all, you may be eligible to receive long-term or lump-sum benefits. The amount of the payment will depend on the nature and extent of your injuries. If you anticipate a permanent work disability, contact your local workers’ compensation office as soon as possible; these benefits are rather complex and may take a while to process.
Social Security Benefits for the Permanently Disabled
If you’re permanently unable to return to work, you may qualify for Social Security Disability benefits. Social Security Disability will, over the long run, provide more benefits than workers’ compensation — but be forewarned that these benefits are hard to get. They are reserved for seriously injured workers. To qualify, your injury or illness: must prevent you from doing any “substantial gainful work,” and must be expected to last at least twelve months or to result in death. If you think you may meet the above requirements, contact your local Social Security office.
Can I be treated by my own doctor and, if not, can I trust a doctor provided by my employer?
In some states, you have a right to see your own doctor if you make this request in writing before the injury occurs. More typically, however, injured workers are referred to a doctor recruited and paid for by their employers.
Your doctor’s report will have a big impact upon the benefits you receive. Keep in mind that a doctor paid for by your employer’s insurance company is not your friend. The desire to get future business from your employer or the insurance company may motivate a doctor to minimize the seriousness of your injury or to identify it as a preexisting condition. For example, if you injure your back and the doctor asks you if you have ever had back problems before, it would be unwise to treat the doctor to a 20-year history of every time you suffered a minor pain or ache. Just say “no” unless you really have suffered a significant previous injury or chronic condition.
If I am initially treated by an insurance company doctor, do I have a right to see my own doctor at some point?
State workers’ compensation systems establish technical and often tricky rules in this area. Often, you have the right to ask for another doctor at the insurance company’s expense if you clearly state that you don’t like the one the insurance company provides, although there is sometimes a waiting period before you can get a second doctor. Also, if your injury is serious, you usually have the right to a second opinion. And in some states, after you are treated by an insurance company’s doctor for a certain period (90 days is typical), you may have the automatic right to transfer your treatment to your own doctor or health plan, while the worker’s compensation insurance company continues to pay the bill. Because the insurance company is paying, don’t hesitate to go to a doctor who specializes in your injury or illness — even if the cost is great.
To understand your rights, get a copy of your state’s rules or, if necessary, research your state workers’ compensation laws and regulations in the law library.
Can I ever sue my employer in court over a work-related injury?
Yes. If you are injured because of some reckless or intentional action on the part of your employer, you can bypass the workers’ compensation system and sue your employer in court for a full range of damages, including punitive damages, pain and suffering, and mental anguish.
What if my employer tells me not to file a workers’ compensation claim or threatens to fire me if I do?
In most states, it is a violation of the workers’ compensation laws to retaliate against an employee for filing a workers’ compensation claim. If this happens, immediately report it to your local workers’ compensation office.