lawyer speaking to client about their personal injury caseA few months ago, I met with a gentleman from Marlborough, Massachusetts who was injured on the job. He worked for a shipping company as a forklift operator. He suffered an injury to his shoulder when he slipped and fell on ice as he tried to move some boxes. When he fell, he landed directly on his shoulder and felt immediate pain. In short, he was taken to the emergency department, referred to an orthopedic surgeon, and physical therapy was recommended. His doctors all ordered him to remain out of work while he recovered from his shoulder injury.

This worker’s employer reported the work injury promptly to their workers’ compensation insurance carrier. Following the appropriate waiting periods and documentation, the injured worker began to receive his temporary total disability benefit checks in the mail. After about a month or so, the injured worker was talking with a friend of his about his work-accident and worker’s comp claim. When he explained to his friend that he was only receiving about $165 per week, his friend told him he should speak with a Massachusetts workers’ compensation attorney because the weekly disability amount seemed very low. That’s when this injured worker called us.

Having an Experience Lawyer Review a Work Accident is Always a Good Idea

As with all injured workers who contact our office, we went through our typical process of evaluating the workers’ compensation claim for this gentleman. One of our assistants had an initial phone conference with this worker and obtained many of the much-needed details about his accident, injury, and employment. I then spoke with him about his claim and immediately noticed something that needed to be addressed. I’ll get to that below. Thus, I scheduled a time to meet with him and asked him to bring some specific documentation to our meeting.

When I met with this worker at our Framingham, Massachusetts office, I confirmed all the information I had received and reviewed the documentation he brought with him. He explained that he had two jobs – one full-time and one-parttime job. The thing I noticed right away was that his disability benefit rate was very low, especially for a worker who had two jobs. Yes, he was hurt at work, but that was at his parttime job. What jumped out to me was that he also had a fulltime concurrent job. In these situations, if his work injury prevents him from returning to both of his jobs, his disability rate should be calculated based upon the combined average weekly wages of both jobs, regardless of which job he was hurt at. This is based on the Massachusetts Workers’ Compensation Act, specifically M.G.L. c. 152 § 1(1).

Concurrent Employment Can Make Huge Difference in a Massachusetts Workers’ Compensation Case

The reason this is so important is because this worker should have been receiving a much higher disability benefit check every week. As I mentioned above, he was only getting $165 per week. This was based on his average weekly wage from his parttime employment only. But, when you calculate this worker’s weekly temporary total disability rate factoring in his concurrent fulltime employment, the weekly rate is much higher.

His average weekly wage was approximately $1,000 from his fulltime employment. Adding that average weekly wage to his average weekly wage from his parttime employment ($165), his concurrent average weekly wage is $1,165. Using the concurrent average weekly wage to calculate his temporary total disability benefits rate (60% of AWW), his weekly disability rate should be $699. That’s a huge difference compared to $165 per week.

Prompt Legal Action Was Taken

I accepted this workers’ compensation claim and this worker hired me to represent him. I took immediate action and obtained the worker’s wages to accurately calculate his fulltime average weekly wage. I also obtained proof that his fulltime employer was covered by workers’ compensation insurance. I then prepared and filed an Employee’s Claim for Benefits and filed it with the appropriate Massachusetts Department of Industrial Accidents (DIA).

This worker’s Claim proceeded through the normal course of a Massachusetts worker’s compensation claim. Prior to the schedule Conference, the workers’ compensation insurer agreed to retroactively pay this worker the difference between the $165 they were paying him and the $699+ he should have been receiving going back to his first date of disability after his accident. They also agreed to continue paying him weekly temporary total disability benefits at his new rate of $699 per week. The agreement was memorialized in a Section 19 Agreement and approved by the DIA. Following the approval, the injured worker received approximately $11,500 in a retroactive check for the difference of what the insurer owed him. He was very happy.

Always Consider Having an Experienced Massachusetts Lawyer Look at Your Case

The situation discussed above is just another example of why an injured worker should consult with an experienced Massachusetts workers’ compensation attorney. Even if you are receiving weekly benefits, it’s always best to have your claim reviewed by an experience lawyer. Plus, at Mahaney & Pappas, LLP, we will review your claim at no cost.  

Charles S. Pappas
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Massachusetts Personal Injury & Workers' Compensation Attorney
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