Frequent Questions on Workers’ Compensation, Motor Vehicle Accidents, Construction Accidents, and More
We have answered a lot of questions over the years, and want all injury victims to have the benefit of our experience. Browse our FAQ page to find answers on construction accidents, car crashes, work accidents, and wrongful death.
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What is a Section 19 Agreement in a Massachusetts Workers’ Compensation Claim?
If you are an injured worker in Massachusetts, you may have heard of a Section 19 Agreement. Perhaps, your workers’ compensation attorney mentioned to you that the insurer proposes a Section 19 Agreement. Or, if you are unrepresented, maybe the workers’ compensation insurance adjuster offered a Section 19 Agreement. Regardless of how you’ve heard of it, a Section 19 Agreement is something that comes up in many Massachusetts Workers’ Compensation claims.
When there is a dispute in a workers’ compensation claim, sometimes the dispute is resolved by the parties entered into an agreement, as opposed to having a judge to make a decision on the claim. For example, if the insurer refuses to pay the injured worker the workers’ compensation disability benefits he or she claims or they refuse to pay for medical treatment, the injured worker (or his or her attorney) would generally file a claim for benefits with the Massachusetts Department of Industrial Accidents. While the claim is pending, the parties may reach an agreement that would resolve the dispute that gave rise to the claim. When the agreement is reached, the parties would reduce the agreement to writing to memorialize the agreement. The written agreement would then be filed with the DIA for consideration by an administrative judge. If the judge approves it, the agreement would be enforceable just like an order made at a Conference.
The term “Section 19 Agreement” gets its name from the section of the Massachusetts Workers’ Compensation Act that governs these types of agreements, which is M.G.L. c. 152 § 19. Section 19 states, in part: “any payment of compensation shall be by written agreement by the parties and subject to the approval of the department. Any other questions arising under this chapter may be so settled by agreement. Said agreements shall for all purposes be enforceable in the same manner as an order under section twelve.”
The DIA has a form called a Section 19 Agreement which must be completed and signed by the employee, his or her attorney, if any, and the insurer’s attorney before it is submitted to the DIA. The Agreement would then be submitted to the DIA for approval. Generally, an administrative judge would review the Agreement and, if acceptable, approve it. Once it is approved, the parties would be bound by said agreement. For example, if the agreement was for the insurer to pay the injured worker temporary total disability benefits for a specific period of time, once it is approved by the DIA, the insurer must pay the disability benefits it agreed to pay.
If you are dealing directly with the workers’ compensation insurer yourself, and they propose a Section 19 Agreement, you should have an experienced Massachusetts workers’ compensation attorney review the agreement to make sure all aspects of your claim are addressed and your rights are protected.
Am I an Employee Covered by Workers’ Compensation in Massachusetts?
In Massachusetts, just about all employees are covered by workers’ compensation insurance. While there are some exceptions, the critical question in determining employment status is the nature of the relationship between the parties. Section 1(4) of the Massachusetts Workers’ Compensation Act (M.G.L. c. 152) defines employees as "every person in the service of another under any contract of hire, expressed or implied, oral or written. . . . " As you can see, there must be either a written or oral contract for hire.
In order to be eligible for or obtain workers’ compensation benefits in Massachusetts after a work-related accident, the injured worker must prove their employment status along with other elements (e.g., work-related accident, disability, average weekly wage, etc..). A Massachusetts case from 1990 set forth a discussion about the employer-employee relationship. Generally, it is contractual. This contract creates for the employee an entitlement and expectation of receiving pay or wages from the employer in exchange for providing services (physical or mental labor) under the direction and the control of the employer. Barofsky's Case, 4 Mass. Workers' Comp. Rep. 135 (1990).
While the question of whether an injured worker is considered an employee for workers’ compensation is usually not a difficult one to answer, there are some circumstances that make it difficult to establish. For example, if an employer seeks the services of another to provide services for one day, if there was an oral agreement between the parties that the worker will provide labor in exchange for pay, he or she will generally be considered an employee and, thus, afforded the protections of workers’ compensation.
If you were injured on the job and unsure of whether you are an employee eligible for workers’ compensation benefits, you should seek the advice of an experienced Massachusetts workers’ compensation attorney. An experienced lawyer will be able to evaluate the facts and circumstances of your work accident and injuries to advise whether you are entitled to workers’ compensation benefits.
What is MMI in a Massachusetts Workers' Compensation Claim?
The term MMI is something that is frequently referred to in connection with a Massachusetts workers’ compensation claim. It can also be considered in a Massachusetts personal injury claim, but more commonly associated with workers’ compensation claims.
MMI is an acronym for Maximum Medical Improvement. MMI occurs when an injured worker reaches the point in his or her treatment where their injury or condition cannot be improved any further even with additional treatment. It can also mean that an injured employee has reached a treatment plateau and it is unlikely that his or her condition will change from that point on. In laymen’s terms, it’s the point where the injured worker is as good as he or she is going to get.
When an injured worker reaches MMI, it may have an impact on their workers’ compensation claim. In some situations, the workers’ compensation benefits may be modified or even terminated. Generally, however, this is when the injured worker (or his/her workers’ compensation attorney) and the insurer begin to discuss the possibility of a lump sum settlement.
Can I Receive Benefits in Massachusetts for a Permanent Impairment Suffered in a Work-Related Accident?
The Massachusetts Workers’ Compensation Act (M.G.L. c. 152) offers additional benefits to injured workers whose job-related injuries result in permanent impairment or disability. A permanent impairment is a permanent loss of a bodily function. The specific statute can be found at M.G.L. c. 152 § 36. These benefits are in addition to the typical workers’ compensation benefits available to injured workers (e.g., disability benefits and/or medical benefits).
The Section 36 benefits are available to an injured worker who suffered permanent loss of sight, hearing, function of the upper and lower extremities and other bodily functions. Additionally, Section 36 benefits are available for workers who are left with a permanent disfigurement.
Section 36 sets forth the amount of additional workers’ compensation benefits employees may be entitled to if their specific injury results in a permanent impairment. The amount of these additional Section 36 benefits depends on the body part and function impaired by the work-related accident and injury and are calculated as a specific multiple of the Commonwealth’s average weekly wage for the date on which the worker was hurt on the job (not the injured employee’s specific average weekly wage).
The injured worker generally needs a permanent impairment rating assigned by the treating physician or surgeon using the American Medical Association’s (AMA's) Guides to the Evaluation of Permanent Impairment once the worker has reached a maximum medical improvement. An experienced Massachusetts workers’ compensation attorney can help determine if you are entitled to the additional Section 36 benefits and, if so, the amount you may be entitled to.
Do I Need an Attorney for my Massachusetts Workers' Compensation Case?
While it is always recommended for an injured worker in Massachusetts to at least consult with a lawyer after being hurt on the job, in relatively simple work accident cases, an injured employee may not need an attorney. For example, in a lot of workers’ compensation cases, the insurance company may accept the claim and pay the injured worker the disability benefits he or she deserves as well as cover the cost of medical treatment. The injured worker may then recover from his or her injuries and return to work.
Workers' Compensation Claims Can Become Complex
These “simple” cases, however, sometimes become more complicated. Employers and their workers’ compensation insurers will sometimes minimize the injuries suffered on the job and the benefits being paid. In those situations, the injured worker may not receive the benefits he or she deserves for the injuries suffered at work. Additionally, during the payment without prejudice period, the insurer may reduce the benefits the injured worker is receiving from temporary total disability to partial disability before the injured worker is actually considered partially disabled. In other cases, the employer and insurance company may try to force an injured worker back to work before they are ready to return. When this happens, an injured employee should consider hiring a workers’ compensation attorney. An experienced lawyer will be able to protect an injured worker’s rights and be sure he or she receives the workers' compensation benefits they deserve.
In work accident cases where a claim is denied outright and no benefits are being paid, the injured employee should hire a workers’ compensation attorney. The lawyer will be able to properly evaluate the accident and injuries, explain the workers' compensation process in Massachusetts and file a claim for for the benefits the injured worker deserves.
What is Subrogation in a Massachusetts Car Accident Case?
Subrogation, in the context of a personal injury claim arising from a car accident, is a legal principle under which an insurance company that has paid a loss under an insurance policy is entitled to all the rights and remedies belonging to the insured against a third party with respect to any loss covered by the policy. What does this mean? Well, it is the process that an auto insurance company uses to recover the money it paid for any claims where another party is responsible. It is probably better understood by using an example:
Let’s assume you were injured in a car accident in Massachusetts. You file a claim for Personal Injury Protection (PIP) benefits with your auto insurance company. The PIP insurance carrier pays $8,000 of your medical bills. You also file a bodily injury claim with the auto insurance company that insures the vehicle that crashed into you. You later settle your bodily injury claim. As part of the settlement, the $8,000 of PIP benefits that paid some of your medical bills are factored into the settlement.
If the value of your personal injury claim is $20,000, the bodily injury insurance carrier will take an offset for the PIP benefits that were paid toward your medical bills. This is because part of the settlement is to compensate you for the medical bills you incurred as a result of the injuries caused by the other driver’s negligence. But, your auto insurance company already paid $8,000 of your medical bills. Therefore, the bodily injury company would reduce the value of your settlement by the $8,000 of PIP benefits paid. Your auto insurance company (the PIP carrier) would then pursue a subrogation claim against the other driver’s insurance company to recover the $8,000 of PIP benefits they paid.
As you can see, personal injury law and insurance coverage can be legally complex. If you are uncertain about what your rights are or whether you are being treated fairly, you should speak with an experienced Massachusetts personal injury attorney. A lawyer that is familiar with insurance coverage and car accident cases can make sure that you are getting the fair compensation you deserve for your injuries and losses.
What If I Had More Than One Job When I Was Hurt At Work in Massachusetts?
In Massachusetts, when an employee has more than one job at the time he or she was hurt at work, the weekly disability benefits are calculated by adding the average weekly wages earned at both jobs. One caveat, however, is that both jobs must be covered by workers’ compensation insurance. This is referred to as concurrent employment.
Concurrent Employment Can Result in Increased Workers' Compensation Disability Benefits
Concurrent employment can significant increase the amount of workers’ compensation disability benefits an injured worker may receive after being hurt on the job. To better understand concurrent employment, let’s look at an example:
Let us assume you hurt your back at work in Framingham, Massachusetts lifting something heavy. Your injury prevents you from returning to work. You earned an average weekly wage of $750.00 at this job. Based upon this information, if you were rendered totally disabled from this injury, you would be entitled to Temporary Total Disability (TTD) Benefits, which is calculated as 60% of your average weekly wage. So, your TTD weekly rate would be $450.00 ($750.00 X 60%).
At the same time as your injury, you had another job in Natick, Massachusetts working part-time. This employer carried workers’ compensation insurance. In addition to your other job, you earned $500 per week at the part-time job in Natick. This would be considered concurrent employment. Considering your concurrent employment, in order to determine your TTD weekly rate, you would add together the two average weekly wages from both employers. Thus, your TTD weekly rate would be $750.00 per week ($750.00 + $500.00 = $1,250.00 X 60% = $750.00).
Make Sure You Inform the Workers' Compensation Insurer About Your Concurrent Employment
As you can see, concurrent employment results in an increased TTD rate ($750.00 vs. $450.00 per week). This is why, if you are injured at work and have more than one job at that time, you need to inform the workers’ compensation insurance company or their adjusters about your other jobs. In most situations, the workers’ compensation insurance company won’t know about your other jobs unless you tell them. If you have questions about concurrent employment or your current workers’ compensation benefits, it is highly recommended you consult with an experienced Massachusetts worker’s compensation attorney.
How Do I Calculate My Weekly Total Disability Benefits From Workers’ Compensation?
If you were injured on the job in Massachusetts, you may be entitled to workers’ compensation benefits. If your work-related injury causes you to be unable to work, you are entitled to disability benefits. The disability benefits for workers who are unable to work in any capacity are known as Temporary Total Disability (or Incapacity) Benefits. These benefits are governed by Massachusetts General Laws, Chapter 152, Section 34 and are paid weekly to qualifying injured workers.
Here’s How to Calculate Your Total Disability
To calculate your weekly Temporary Total Disability Benefits you first need to know your average weekly wage. For information on what your average weekly wage is and how to calculate it, please see: Calculating the Average Weekly Wage; Why is it so Important in a Massachusetts Workers' Compensation Claim?
Your Total Disability Benefit rate is sixty (60%) of your average weekly wage. So, once you have determined your average weekly wage, you would multiply it by 60%.
For Example: If a worker had an average weekly wage of $750.00, their Temporary Total Disability Benefits would be $450.00 per week ($750 X 60%).
If you have been injured on the job in Massachusetts and are unable to work and you are either not getting workers’ compensation benefits or feel that you may not be getting the correct amount of disability benefits, you should speak with a workers’ compensation attorney. An experienced workers’ compensation lawyer will be able to evaluate your claim and make sure that you are getting the benefits you deserve for your injuries.
How Will I Receive My Lump Sum Settlement From My Massachusetts Workers' Compensation Case?
This is a question we are asked often. When a Massachusetts workers’ compensation claim is settled by way of a lump sum settlement and approved by the Department of Industrial Accidents (DIA), the insurance company will mail a check directly to the injured worker. The settlement check will represent the net proceeds from the settlement as the insurance company will also mail a check to the injured worker’s attorney for the legal fees and expenses, if any. The insurance company is required by the laws in Massachusetts to mail the lump sum settlement check to the injured worker within a specific time period, or they will be penalized.
Sometimes, there is confusion of whether the settlement check will be mailed to the injured worker’s attorney first. The misunderstanding most likely comes from the difference between a settlement of a personal injury claim (e.g., car accident case, slip and fall, etc…) and a workers’ compensation claim in Massachusetts.
With a settlement of a personal injury claim in Massachusetts, typically the insurance company will issue the settlement check to the injured person’s attorney. The personal injury lawyer will then deposit the settlement check in their client trust account (IOLTA). From there, the attorney will pay any expenses or liens associated with the personal injury claim and then issue the net proceeds of the settlement check to the injured person.
But, with a settlement of a workers’ compensation claim, the insurance company will mail the settlement directly to the injured employee.
Does My Massachusetts Employer Have Workers’ Comp Insurance?
Under the Massachusetts Workers’ Compensation Act (M.G.L. c. 152) employers are required to purchase and carry workers’ compensation insurance. This insurance policy covers employees who are injured on the job. The insurance coverage offers benefits to injured workers that will cover:
- A portion of lost wages if the employee’s work-related accident precludes them from working and earning wages. These are disability benefits;
- The cost of reasonable and medically necessary treatment of a work-related injury. These benefits are known as medical benefits;
- Travel to and from doctor’s appointments for treatment of your work injury or injuries;
- Loss of function caused by an injury suffered on the job; and,
- Scarring and disfigurement that results from an accident at work.
How Do I Verify My Employer Has Workers’ Compensation Insurance?
Employers are required by law to post a notice identifying their workers' compensation insurance company somewhere in the work place. If a notice is not posted or cannot be found, you should ask your employer. If your employer refuses to tell you who their insurance company is, you can always contact the Massachusetts Department of Industrial Accidents to check if their employer has an active workers’ compensation insurance policy. The DIA’s website also has a search engine that allows workers to verify workers’ compensation insurance coverage for employers operating in Massachusetts. However, the search engine results are not always up to date, so we always recommend contacting the DIA or a Massachusetts workers’ compensation attorney to confirm that your employer has the proper insurance.
What If Your Employer Does Not Have Workers’ Compensation Insurance?
Although the laws in Massachusetts require employers to carry workers’ compensation insurance, some do not always have the proper insurance. If your employer did not have workers’ compensation insurance at the time of your work accident, there is the Massachusetts Workers' Compensation Trust Fund that would stand in the place of the workers’ compensation insurance. This Trust Fund was created by a specific statute in Massachusetts (M.G.L. c. 152 § 65) and is available for employees who were hurt on the job and whose employer did not have insurance at the time of the accident. The Trust Fund offers the same benefits available to an injured worker.