Articles Posted in Workers’ Compensation

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If you are injured and it is due in part or in whole to someone else’s negligence, then you may have a personal injury case. Negligence is generally defined as a failure to use reasonable care. If you were hurt because someone else failed to use reasonable care, you may have a personal injury case.

If you were injured while at work you may also have a workers’ compensation case. Workers’ compensation is paid for by your employer’s insurance. The purpose of worker’s compensation is to provide an injured worker with a portion of his or her lost wages and to pay for all reasonable and necessary medical treatment related to the work injury. Personal injury cases differ from workers’ compensation because personal injury cases are intended to compensate you for the full amount of medical expenses, lost wages, as well as pain and suffering

A personal injury case is brought against the person or entity who is fully or partially responsible for causing your injury. Examples of personal injury cases include if you were hurt on a construction site, in a motor vehicle crash, or in a slip and fall injury on a defective walkway or on snow and ice.  Massachusetts’ workers’ compensation laws do not allow an injured worker to bring a personal injury case against their employer or a co-employee.  They are limited to workers’ compensation benefits.  Injured workers may, however, be entitled to workers’ compensation benefits and also have a personal injury case arising out of the same injury if a negligent third party (a person or entity other than the employer of the injured worker) caused or contributed to their injuries.  An example would be a construction worker who is injured while working for a trade contractor, and was injured due to the negligence of the construction project’s general contractor. Continue reading

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While the overall intention of Governor Baker’s opioid bill appears to be positive for those in Massachusetts dealing with chronic pain and opioid dependency, it contains a section that would be harmful to injured workers who rely on Massachusetts’ workers’ compensation insurance to pay for their prescription medication.  Section 39 of the Governor’s opioid bill would establish drug formularies in all workers’ compensation cases (not just those involving the prescription and use of opioids) and for all medications.  Section 39 of House Bill No. H-4033 states:

SECTION 39. Chapter 152 of the General Laws is hereby amended by inserting after the following section:

             Section 13 ½. The department shall establish a formulary of clinically appropriate medications, including opioids and related medications, and shall promulgate regulations for the administration of this formulary.  In establishing the formulary, the department shall consult with the health care services board and the drug formulary commission established in section 13 of chapter 17 of the General Laws.  The formulary shall be based on well-documented, evidence-based methodology, and the department shall include as part of the formulary a complete list of medications that are approved for payment under this chapter, and any specific payment, prescribing, or dispensing controls associated with the drugs on the list.  The department shall review and update, if necessary, the formulary at least once every 2 years.

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          Massachusetts’ workers’ compensation insurance pays for any medical treatment, tests, procedures and prescription medication that is “reasonable, necessary” and “causally related” to your work injury.  The workers’ compensation insurer will not automatically pay for these medical benefits.  Your medical provider MUST follow certain guidelines in order for the workers’ compensation insurer to pay for your medical treatment or prescriptions.  Here is the general process for your medical provider to follow in order to get your medical treatment and prescription medication approved by workers’ compensation: Continue reading

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The simple answer to this question is yes, but only in very limited circumstances.  One cannot generally sue their employer for injuries that happen at work.  There are, however, some exceptions where an injured worker may “sue” to be compensated for a workplace injury.  Massachusetts’ workers’ compensation laws provide that if one is injured at work, then the injured person’s “exclusive remedy’ against their employer is compensation through the workers’ compensation system.  The Massachusetts workers’ compensation system, much like those workers’ compensation systems in other states, provides only limited compensation for work injuries.  In stark contrast, civil lawsuits for injuries allow an injured person to pursue compensation for 100% of past and future wage loss, 100% of cost of medical expenses (subject to the insurer’s lien), and pain and suffering.  Many times, an injured worker is surprised to hear that they are limited to workers’ compensation benefits as a result of their work injury.  Because the settlement value of civil lawsuit generally far exceeds the settlement value of a workers’ compensation claim, it is always necessary to investigate a work injury to determine whether a civil lawsuit may also be pursued.  A few situations where an injured worker may be able to pursue additional compensation through a civil lawsuit include:

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In this Massachusetts’ workers’ compensation claim, an injured union sheet metal worker represented by Carney, Rezendes & Crowley, LLC was awarded Section 34A permanent and total disability benefits.  The injured worker, represented by Attorney Brendan G. Carney, initially injured his left knee at work in 1980.  He had left knee surgery and returned to work shortly thereafter.  Then in 1998, while working on a pitched roof, the worker felt a sharp pain in his left knee.  He underwent arthroscopic surgery, and returned to work once again after a few months of disability as he recovered from this second left knee surgery.  He continued to work as a sheet metal roofer, and then in 2008 his left knee pain returned.  He worked through pain, aided by injections, for four more years when his doctor told him he needed a total knee replacement.  Because by this point he had worked enough years to qualify for a retirement pension through his union, he retired from work because of his left knee condition.   Although his left knee symptoms were clearly all related to his history of work injuries, the worker was not aware that he was entitled to workers’ compensation benefits.  He consulted with another attorney who was not sure whether there was a viable workers’ compensation claim.  That prior attorney contacted our firm for guidance. After a thorough investigation of the injured workers’ medical and employment history, Carney, Rezendes & Crowley, LLC agreed to pursue the case.  A claim for Section 34 temporary total disability benefits and payment for medical treatment, and then later a claim for Section 34A permanent and total disability benefits were then pursued by our firm. Continue reading

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Often times, injured workers who are receiving Massachusetts workers’ compensation benefits are mailed a form titled “Form 105 – Agreement to Extend the 180 Day Payment Without Prejudice Period.” Workers’ compensation insurers may send this form to an injured worker who has not yet retained an attorney in hopes of getting an injured worker who has not yet hired a lawyer to sign the form without fully understanding the ramifications of doing so. It is usually sent to the injured worker during the 3rd to 5th month of disability following a work injury.

Signing the Agreement to Extend 180 Day Payment Without Prejudice Period form sent to you by the workers’ compensation insurer can have an extremely negative impact on your claim.  Insurance companies will send you this form under the guise that they are doing you a favor and agreeing to pay you for another 180 days, however by signing this form you are giving up legal rights and you may expose yourself to allowing the insurer to legally terminate benefits and put you in the position where you could go many months with no benefits while you fight the insurance company in court. In order to fully understand why singing this form can have negative consequences for an injured worker, it would be helpful to explain exactly what the 180 Day Payment Without Prejudice Period is. Continue reading

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Unfortunately for injured workers in Massachusetts, the short answer to this question is “yes”.  Although Massachusetts General Laws Chapter 152, Section 75B(2) provides a legal remedy to injured workers who are fired in retaliation for filing a workers’ compensation claim, the law does not provide any protection for injured workers’ to protect their ongoing health insurance paid for by their employer.  The exception to this is that most union member’s are subject to collective bargaining agreement provisions (negotiated by their respective labor unions) that provide ongoing health insurance coverage for injured workers for a certain period of time during a period of disability from work.  However, most non-union employees have no protection at all.  Although the general answer to the question posed by this blog is “Yes”, there are some federal laws that may protect an injured workers’ ongoing entitlement to health insurance coverage. Continue reading

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Often times the first thought that employees have after suffering an on the job injury is whether their injury will cause them to be looked upon negatively by their employer.  It is common knowledge that an injury that requires medical treatment and lost time from work will cost the employer money, both by way of lost productivity and increased workers’ compensation premiums.  When an employee is injured on the job and requires more than six calendar days of disability from work, or requires medical treatment, shall be entitled to workers’ compensation benefits that compensate the injured worker for the lost time and medical treatment. These benefits are typically paid for by the employer’s workers’ compensation insurer, but may be paid directly by the employer themselves if they qualify for “self- insured” status.  Once an employer’s workers’ compensation insurer has paid benefits to a Massachusetts’ injured worker, that insurer will then subject the employer to an insurance premium adjustment based on cost incurred by the insurance company.  This adjustment typically passes some or all of the cost of the injured workers’ compensation claim from the insurance company back down to the employer.  Because workplace injuries can cause an employer to incur a substantial cost, often times injured workers may be reluctant to report injuries or seek medical treatment out of fear that they may alienate their employer or be terminated. Continue reading

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A problem that is becoming more common for injured workers in Massachusetts is finding a competent doctor who will accept worker’s compensation insurance and the medicalreimbursement rates that Massachusetts’ workers’ compensation insurers are obligated to pay.  To better understand why not all doctors are willing to accept patients who have been injured on the job, one must have a grasp of how health insurance plans are written, the amount of money a workers’ compensation insurer is obligated to pay a doctor, and why it is not always in the best financial interest of a doctor to accept workers’ compensation insurance.

First, all health insurance policies have an exclusion for work-related injuries.  That means that if you are injured during the course of your employment, your health insurance policy will not pay for any medical treatment that is determined to be made necessary by your work injury.  The only exception to this rule is a situation where you are injured at work and your employer’s workers’ compensation insurer has denied payment for your medical treatment.  The workers’ compensation insurer’s denial will then trigger your health insurer’s obligation to pay for the medical treatment so long as it is determined to be treatment that is reasonable and necessary.  In this situation, your health insurer will likely then file a lien on your workers’ compensation claim if you decide to retain an attorney and file a claim at the Department of Industrial Accidents seeking to compel the workers’ compensation insurer to pay for your medical treatment.  All medical treatment made necessary by a work related injury should be billed to your employer’s workers’ compensation insurer. Continue reading

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Workers’ Compensation insurers must follow certain procedures in order to lawfully terminate or reduce Massachusetts workers’ compensation benefits.  The procedure for modification or termination varies greatly depending on how long the insurance company has been paying benefits.

THE FIRST 180 DAYS AFTER YOUR DISABILITY BEGINS

If the insurer has began to make payment of weekly benefits to you timely, namely within 14 days of notice, the insurer is allowed to stop payments to the employee without obtaining approval of the Department of Industrial Accidents (“DIA”) or the consent of the employee. However the insurer is required to give the employee seven(7) day written notice of their intent to stop benefits. The insurer’s written notice of termination must state their reasons and advise the employee of his or her rights to file a claim for further benefits.  If you return to work at the same rate of pay you were earning prior to your injury, the insurer may terminate benefits effective the last day you were disabled prior to your return to work.  If your own treating doctor clears you to return to your previous job, the insurer may terminate benefits regardless of whether or not your prior job remains available to you.

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